J-S61016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DORIAN LAMORE

                            Appellant                   No. 124 WDA 2014


              Appeal from the Order Entered on December 9, 2013
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0011572-1993


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                             FILED OCTOBER 27, 2014

       Dorian Lamore (“Lamore”) appeals, pro se, from the December 9,

2013 order dismissing his fifth petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.          Lamore’s PCRA

petition is untimely and he has failed to satisfy any of the exceptions to the

timeliness requirements of the PCRA.           Therefore, the PCRA court lacked

jurisdiction over this petition, and we affirm the PCRA court’s order

dismissing Lamore’s PCRA petition.

       A previous panel of this Court summarized the factual history of this

case on direct appeal as follows:

       On September 9, 1993, the victims, Mr. Puhac [“Puhac”] and Mr.
       Weiss [“Weiss”] attempted to deliver a pizza to 1016 Lamont
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*
       Retired Senior Judge assigned to the Superior Court.
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       Street.   Puhac was driving the car, and Weiss was in the
       passenger seat. As Puhac drove down Lamont Street, he noticed
       a small group of people sitting on the front steps of a house. He
       asked them if they had ordered a pizza. They replied that they
       had not, but pointed to a house behind them. Puhac then began
       to back up. As he did so, [Lamore and Phillip Foxx (“Foxx”), a
       co-defendant] approached the car.          Lamore went to the
       passenger side of the car, and Foxx went to the driver’s side.
       After demanding money and the pizza, Lamore shot Weiss in the
       head.    Foxx then forced Puhac out of the car and again
       demanded his money. Puhac instructed Foxx that it was in his
       pocket, and that he could have it. Foxx took the money and
       began to walk away. He subsequently turned around and shot
       Puhac in the arm stating, “Here this is for you. Take this.”
       Puhac ran to a nearby post office and telephoned for help. He
       was then taken to the hospital.

       While at the hospital, Puhac gave police detailed descriptions of
       both of the attackers. The police found Foxx in an abandoned
       house, along with a pizza box and a loaded semi-automatic
       pistol. Lamore was at the home of his mother, and he and his
       mother agreed to go to police headquarters and answer
       questions about the evening’s events. Both [Lamore and Foxx]
       gave the police statements.

Commonwealth v. Lamore, 60 Pitts. 1995, slip op. at 2-3 (Pa. Super. April

24, 1996). A previous panel of this Court summarized the procedural history

of this case as follows:

       On June 28, 1994, a jury returned a verdict finding [Lamore]
       guilty of first-degree murder and two counts of robbery,
       aggravated assault, violation of the Uniform Firearms Act,
       firearms not to be carried without a license, criminal conspiracy,
       and recklessly endangering another person.[1] Sentencing was
       deferred to allow for a presentence investigation. On July 25,
       1994, [Lamore] was sentenced to life imprisonment [without the
       possibility of parole for first-degree murder and] he was
       sentenced at robbery, to a term of imprisonment of ten to
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1
       18 Pa.C.S. §§ 2501, 3701, 2072(a)(1), 6106, 903, 2705 respectively.



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     twenty years, consecutive to the sentence at [first-degree
     murder]; at aggravated assault, to [a] consecutive term of
     imprisonment of ten to twenty years, and at criminal conspiracy,
     to a consecutive term of imprisonment of five to ten years.
     [Lamore] was not sentenced on the violation of Uniform Firearms
     Act and the recklessly endangering another person convictions.

     On July 29, 1994, [Lamore] filed a motion for a new trial and to
     modify sentence. This motion was denied by operation of law on
     November 26, 1994. On December 6, 1994, [Lamore’s] attorney
     was permitted to withdraw, and the Office of the Public Defender
     was appointed to represent [Lamore] on appeal. [The Public
     Defender] filed a notice of appeal on December 23, 1994. This
     Court affirmed the judgment of sentence by Order and
     Memorandum Opinion.           On November 15, 1996, the
     Pennsylvania Supreme Court denied [Lamore’s] petition for
     allocatur.

     [Lamore] filed a pro se PCRA petition on September 25, 1997.
     On August 17, 1998, [PCRA counsel] filed an amended PCRA
     petition on behalf of [Lamore]. [The Honorable Robert E.] Dauer
     sent a notice of intention to dismiss on July 21, 1999, and [PCRA
     counsel] filed her response on August 17, 1999. The petition
     was dismissed without a hearing on September 16, 1999.

     [PCRA] counsel filed a notice of appeal on September 24, 1999,
     and this Court affirmed the order. A petition for allowance of
     appeal was filed on July 28, 2000 at 454 WAL 2000 and was
     denied on November 9, 2000.

     On January 18, 2001, [Lamore] filed a second pro se PCRA
     petition. Judge Dauer sent a notice of intention to dismiss the
     petition on March 22, 2001, and Judge Dauer dismissed the
     petition without a hearing on July 30, 2001.          Thereafter,
     [Lamore] filed a pro se notice of appeal on August 16, 2001, and
     this Court affirmed.

     [O]n May 3, 2005, [Lamore] filed another collateral petition, and
     the Honorable Jeffrey A. Manning filed a notice of intent to
     dismiss PCRA on October 4, 2005. On March 2, 2006, the lower
     court denied [Lamore’s] PCRA petition.

     On October 23, 2006, [Lamore] filed a petition for writ of habeas
     corpus and memorandum of law. By order dated December 28,
     2006, the lower court denied the petition. [Lamore], pro se,
     filed a notice of appeal on January 11, 2007. On February 2,

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        2007, Judge Manning filed a second order denying the petition
        for writ of habeas corpus relief and subsequently another notice
        of appeal was filed on February 10, 2007 challenging the denial
        of the petition for writ of habeas corpus. Judge Manning filed
        statements pursuant to Pa.R.A.P. 1925(a) on March 28, 2007,
        May 1, 2007, and July 31, 2007.

Commonwealth v. Lamore, 373 WDA 2007, slip op. at 1-4 (Pa. Super.

Jan. 23, 2008) (footnotes omitted; minor modifications to capitalization and

grammar). On January 23, 2008, this Court affirmed the denial of the writ

of habeas corpus.

        On July 31, 2012, Lamore filed the instant PCRA petition.            On

November 18, 2013, the PCRA court issued a notice of its intent to dismiss

Lamore’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 and

dismissed the petition on December 9, 2013. On January 8, 2014, Lamore

filed a notice of appeal.       Lamore filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on February 13,

2014.     On May 16, 2014, the PCRA court issued a memorandum opinion

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

        Lamore raises the following issues on appeal:

        1. Did the PCRA court commit an error of law by fail[ing] to
           grant new proceedings that would determine a legal sentence
           for Petitioner in accordance with retroactive principles of the
           decision in Miller v. Alabama, [132 S. Ct. 2455 (2012)]
           that held a state’s statute which imposed a mandatory life
           sentence penalty without the option considered for parole
           eligibility upon a juvenile offender violates the United States
           Constitution’s Eighth and Fourteenth Amendments?

        2. Has the PCRA court committed an error of law that denied
           due process of equal protection under the law for the
           Petitioner to seek redress from discriminated exercise under

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            the United States Constitution’s Eighth and Fourteenth
            Amendments, as well as his rights guaranteed under the
            Pennsylvania Constitution, Article I, Sections 1, 9, 13, 14, and
            26?

Lamore’s Brief at vi.

      Our standard of review for PCRA claims is well settled:

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the court’s determination is supported by
      the evidence of record and free of legal error. This Court grants
      great deference to the findings of the PCRA court if the record
      contains any support for those findings. Further, the PCRA
      court’s credibility determinations are binding on this Court,
      where there is record support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

      Under the PCRA, a claim must be filed within one year after the

petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

“[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.” 42 Pa.C.S. § 9545(b)(3). Lamore’s judgment of sentence became

final on or about February 15, 1998. Therefore his PCRA petition is facially

untimely.

      However, there are exceptions to the time bar:

      (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;

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      (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)(i-iii). A petitioner has sixty days from the date that

the claim could have been presented to file a PCRA petition.               42 Pa.C.S.

§ 9545(b)(2).      In   order   to   invoke   an    exception   to   the    timeliness

requirements of the PCRA, a petitioner has the burden of proof to

demonstrate that an exception applies.             42 Pa.C.S. § 9545(b)(i).        The

timeliness of a PCRA petition is jurisdictional, and courts are prohibited from

considering the merits of untimely PCRA petitions.              Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000), abrogated on other grounds,

Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008).

      Lamore argues in his petition that the new constitutional right

exception to the time bar applies.        Lamore’s Brief at 2-3.           Specifically,

Lamore alleges that his sentence is in violation of the United States Supreme

Court’s decision in Miller v. Alabama, and that his petition is timely based

upon Miller, itself.    Our Supreme Court has stated that there are two

requirements that must be met in order for a petition to fall under this time

bar exception.

      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

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        in [the PCRA]. 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 in
        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.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007).

        In the present case, Lamore has failed to present a timely PCRA

petition based upon a constitutional right newly recognized either by the

Supreme Court of the United States or the Supreme Court of Pennsylvania.

Lamore bases the timeliness argument of his petition upon the United States

Supreme Court’s decision in Miller v. Alabama.          In Miller, the Supreme

Court held that mandatory life sentences without the possibility of parole for

juvenile offenders are in violation of the Eighth Amendment prohibition

against cruel and unusual or excessive punishment.        Miller, 132 S. Ct. at

2469.      The Court declined to address whether its holding applied

retroactively to sentences administered prior to the Court’s ruling.

        Nonetheless, our Supreme Court has held that Miller’s mandate does

not apply retroactively. Commonwealth v. Cunningham, 81 A.3d 1, 10-

11 (Pa. 2013). Indeed, as we explained in Commonwealth v. Seskey, 86

A.3d 237, 243 (Pa. Super. 2014):

        Recently, in Cunningham, our Supreme Court held that the
        constitutional right announced by the United States Supreme
        Court in Miller does not apply retroactively. 81 A.3d at 10.
        Consequently, [a]ppellant cannot rely upon Miller or subsection

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      9545(b)(iii) to establish jurisdiction over his untimely PCRA
      petition in any Pennsylvania court.          Hence, we lack the
      jurisdiction to review the merits of [a]ppellant’s issues . . . .

Id. at 243.

      The same principle that applied to Seskey applies to Lamore. Because

Miller was decided long after Lamore’s judgment of sentence became final,

Lamore has failed to prove that subsection 9545(b)(1)(iii) applies to his

case. Therefore, the PCRA court lacked jurisdiction to entertain his petition,

and further review of the issues that he raised is unnecessary. We affirm

the PCRA court’s order dismissing Lamore’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




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