J-S82040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD GARY BOYD,

                            Appellant                 No. 849 MDA 2016


                    Appeal from the PCRA Order May 3, 2016
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-MD-0000816-1977


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 14, 2016

        Appellant, Edward Gary Boyd, appeals pro se from the order

dismissing his second petition pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541–9546 (PCRA). Appellant argues chiefly that his sentence

of life without parole following a jury conviction of murder of the first degree

is illegal under Miller v. Alabama, 132 S. Ct. 2455 (2012),1 held to be

retroactive on collateral review by Montgomery v. Louisiana, 136 S. Ct.

718, 726 (2016), as revised (Jan. 27, 2016). We affirm.



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*
    Retired Senior Judge assigned to the Superior Court.
1
   Miller held that mandatory life without parole for juvenile homicide
offenders violates the Eighth Amendment’s prohibition on “cruel and unusual
punishments.” Miller, supra at 2460.
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       Appellant concedes that he was convicted of murder of the first degree

for the beating and stomping to death of a motel night clerk arising out of a

robbery on August 8, 1976. (See Appellant’s Brief, at 5). Appellant states

(and the record confirms) that he was twenty at the time of the murder.

(See id.).

       On March 22, 2016, Appellant filed the instant second petition,2 pro se,

claiming, in effect, that he was entitled to the benefit of the United States

Supreme Court’s ruling in Miller, supra, under the ruling in Montgomery,

supra, which held that Miller was retroactive and provided a remedy on

collateral review. The PCRA court filed a notice of intention to dismiss. See

Pa.R.Crim.P. 907(1). Appellant responded. The court dismissed the petition

on May 3, 2016. This timely appeal followed.3

       Appellant raises two questions for our review on appeal:

             I. Did the imposition of [Appellant’s] life without parole
       sentence for a homicide offence violate the Eighth and
       Fourteenth Amendments’ prohibition against cruel and unusual
       punishments under the United States Constitution and Article I
       § 13 of the Pennsylvania Constitution? Did the imposition of
       [Appellant’s] life without parole sentence for a homicide offense

____________________________________________


2
  The record confirms that at least two petitions were filed. Appellant
referred to a third previous petition, but did not supply further details. (See
Nunc Pro Tunc Motion for PCRA Relief, 11/11/14, at 2).
3
   Appellant timely filed a court-ordered statement of errors. The PCRA court
filed a memorandum referencing its memorandum opinion of April 4, 2016,
for the reasons for denying Appellant’s petition. See Pa.R.A.P. 1925.




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      violate the Fourteenth Amendment equal protection rights found
      in Obergefell v. Hodges, 576 [sic]?

            II. Did [the] PCRA Court commit reversible legal error
      when it denied [Appellant’s] PCRA [p]etition when it did not
      recognize that the United States Supreme Court’s ruling in
      Miller v. Alabama and Jackson v. Hobbs applies to the instant
      life without parole sentence, for juveniles and those with less
      developed brains?

(Appellant’s Brief, at 4).

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the evidence of record supports
      the court’s determination and whether its decision is free of legal
      error. Commonwealth v. Lane, 81 A.3d 974 (Pa. Super.
      2013), appeal denied, 625 Pa. 658, 92 A.3d 811 (2014). This
      Court grants great deference to the findings of the PCRA court if
      the record contains any support for those findings.
      Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007),
      appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no
      such deference, however, to the court’s legal conclusions.
      Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
      2012).

Commonwealth v. Secreti, 134 A.3d 77, 79–80 (Pa. Super. 2016).

“Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary.” Commonwealth v. Colavita, 993

A.2d 874, 886 (Pa. 2010).

      Preliminarily, we observe that “[t]he Pennsylvania prohibition against

cruel and unusual punishment is coextensive with the Eighth and Fourteenth

Amendment[s] of the United States Constitution.        Therefore, we do not

conduct a separate analysis of Appellant’s state constitutional claim.”

Commonwealth v. Bonner, 135 A.3d 592, 597 n.18 (Pa. Super. 2016),




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appeal denied, ── A.3d ───, (Pa. filed July 27, 2016) (citation and internal

quotation marks omitted).

       Next, we acknowledge that Appellant timely filed the instant petition

within sixty days of the United States Supreme Court’s decision in

Montgomery, supra.              See Secreti, supra             at 82     (using date    of

Montgomery         decision    as   reference    point   for    timely    filing   because

Montgomery was needed to clarify Miller); see also 42 Pa.C.S.A.

§ 9545(b)(2) (requiring petitioner asserting timeliness exception to file

petition within sixty days of date claim could have been presented).

       Nevertheless, Appellant’s first claim lacks merit.          The authority cited

by Appellant does not apply to him. The holding in Miller expressly applies

only to juveniles under the age of eighteen:               “We therefore hold 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.’”4 Miller, supra at 2460 (emphasis added).

       Citing a definition from the Statutory Construction Act, Appellant

argues that, at twenty, he was still a “minor” who had not reached full legal


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4
  The Eighth Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
CONST. amend. VIII. “The provision is applicable to the States through the
Fourteenth Amendment.” Roper v. Simmons, 543 U.S. 551, 560 (2005)
(citations omitted).




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age. (See Appellant’s Brief, at 7); see also 1 Pa.C.S.A. § 1991 (“‘Minor.’

An individual under the age of 21 years.”).

      However, Appellant’s reliance on rules of statutory construction is

misplaced. In pertinent part, for purposes of the Juvenile Act, a “Child” is

“[a]n individual who: (1) is under the age of 18 years[.]” 42 Pa.C.S.A. §

6302 (emphasis added).

      Here, Appellant was neither a child nor a juvenile within the defined

meaning of those terms as they are applied in the authority he cites.

Therefore, his claims that he should be treated as a juvenile at the time he

committed the murder in question, and that he received a cruel and unusual

punishment, or that he was denied the equal protection of the laws do not

merit relief.

      Appellant also claims that he is entitled to the equal protection of the

laws pursuant to Obergefell v. Hodges, 135 S. Ct. 2584 (2015).           (See

Appellant’s Brief, at 21.). Obergefell concluded that the right to marry is a

fundamental right under the due process and equal protection clauses of the

Fourteenth Amendment such that couples of the same-sex may not be

deprived of that right and liberty. See Obergefell, supra at 2604. Aside

from this reference, we are unable to discern the relevance of Obergefell to

the issues in this appeal. And Appellant, despite sporadic mention, fails to

develop any argument in support of his assertion. (See Appellant’s Brief, at

4, 7, 21, 23, 26). Appellant’s first claim does not merit relief.


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       In his second claim, Appellant asserts that Miller, supra and Jackson

v. Hobbs apply to him as a juvenile or a person with a less developed brain.

(See id. at 4). We disagree.

       In support of his claim, Appellant cites named and unnamed scientific

studies for the generalization that development of the human brain is not

necessarily complete at the age of eighteen.5 (See id. at 14-20). Instead,

according to the studies, it continues until sometime in the mid-twenties.

Put another way, Appellant posits that maturation is incomplete at eighteen.

Rather, persons between seventeen and twenty-five should be viewed as

“emerging adult[s].” (Id. at 24, 26). He argues from the studies that such

a person, compared to a fully matured adult, may still lack proper impulse

control, be more susceptible to peer pressure, and lack the full capacity to

engage in objective benefit-risk assessment.     He maintains that his life

sentence should be vacated, and he be granted a new sentencing hearing.

(See id. at 31-32). We disagree.
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5
   Appellant relies heavily on United States v. C.R., 792 F. Supp.2d 343
(E.D. N.Y. 2011). (See Appellant’s Brief, at 14-18). This Court is not bound
by the decisions of federal courts (other than the United States Supreme
Court), but we may look to them for guidance to the degree we find them
useful and not incompatible with Pennsylvania law. See Eckman v. Erie
Ins. Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011). In any event, the
Second Circuit vacated the decision in C.R., (expressly rejecting the
finding that punishment of nineteen year-old for possession of child
pornography violated cruel and unusual punishments clause), and remanded
the case. See United States v. Reingold, 731 F.3d 204 (2d Cir. 2013).




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      This issue of where to draw the line has already been addressed by the

United States Supreme Court in Roper, supra:

             Drawing the line at 18 years of age is subject, of course, to
      the objections always raised against categorical rules.         The
      qualities that distinguish juveniles from adults do not disappear
      when an individual turns 18. By the same token, some under 18
      have already attained a level of maturity some adults will never
      reach. For the reasons we have discussed, however, a line must
      be drawn. The plurality opinion in Thompson [v. Oklahoma,
      487 U.S. 815 (1988)] drew the line at 16. In the intervening
      years the Thompson plurality’s conclusion that offenders under
      16 may not be executed has not been challenged. The logic of
      Thompson extends to those who are under 18. The age of 18
      is the point where society draws the line for many purposes
      between childhood and adulthood. It is, we conclude, the age at
      which the line for death eligibility ought to rest.

Roper, supra at 574.

      On independent review, we conclude that the logic employed in Roper

for death penalty eligibility applies equally here to a sentence of life without

parole. Appellant’s second claim does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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