J-S26036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TRACY LEE PIETROVITO

                        Appellant                   No. 1383 MDA 2014


                Appeal from the PCRA Order July 16, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0001161-1985


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED MAY 06, 2015

     Appellant Tracy Lee Pietrovito appeals from the order of the Berks

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.

     The trial court provided the following factual and procedural history:

        This case arises out of a deadly fire that raged through a
        YMCA on January 28, 1985. At the time, Appellant, who
        was then seventeen, lived a half block away from the
        YMCA in Reading, Berks County, Pennsylvania. The city
        police suspected Appellant had committed nine acts of
        arson in June 1985 and called him to come into the Youth
        Aid Division of the Reading Police Department for an
        interview. He voluntarily appeared, in the company of his
        parents. He was read his Miranda rights and he agreed to
        talk to the police. Appellant confessed that he had set the
        fires in June. At that point, Appellant was under arrest and
        in custody. The police then suspected that he might have
        also been involved in the YMCA fire, so they told Appellant
        of the seriousness of the charges, including the fact that
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          four deaths had resulted. They again read him his Miranda
          rights. He and his mother were given the opportunity to
          consult.      Appellant waived his rights and then, after
          initially trying to pin the arson on a fictitious eight[-]year[-
          ]old boy, confessed to setting the YMCA fire. The Police
          believed his confession because it was corroborated, in
          that he knew details of the four incendiary fires known
          only by a few other individuals. Appellant confessed a
          second time on June 7, 1985 at the Berks County Juvenile
          Detention Center in front of staff personnel. One hundred
          five people were in residence at the YMCA at the time the
          fires were set; there were 50 injuries and four people died
          as a result, including a 26[-]year[-]old volunteer fireman.
          The fires destroyed $1.2 million dollars worth of property.

                                           ...

          On June 5, 1985, Appellant was charged, as an adult, with
          Criminal Homicide (4 counts); Second Degree Murder (4
          counts); Aggravated Assault (4 counts); Recklessly
          Endangering Another Person (5 counts); and one count
          each of: Causing or Risking a Catastrophe by Fire, Arson
          and Criminal Trespass.[1] A jury trial began on March 31,
          1986 before the Honorable Arthur E. Saylor.1 On April [9],
          1986, the jury found Appellant guilty on all counts.
          Appellant filed [post-trial] Motions, which were denied by
          the Honorable Frederick Edenharter.         Appellant was
          sentenced on March 21, 1988, by the Honorable Albert
          Stallone, who was assigned to take over all of Judge
          Saylor’s cases after his death. Judge Stallone sentenced
          Appellant to life imprisonment on each of the four murder
          convictions, all four sentences to run concurrently; one to
          two years on the conviction for recklessly endangering
          another person, to run consecutively to the sentences for
          second degree murder; three to twenty[-]three years on
          the conviction for causing a catastrophe by fire, to run
          consecutive to the second degree murder sentences and
          concurrently with the recklessly endangering sentence, and
          finally, three to ten years on the criminal trespass
____________________________________________


1
  18 Pa.C.S. §§ 2501(a), 2502(b), 2702, 2705, 3301, 3302, and 3503,
respectively.



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           conviction, this sentence to run consecutive to the murder
           sentences and concurrent with the remaining sentences.
           Appellant filed an appeal to the Superior Court, which
           affirmed the judgment of sentence on December 28, 1988.
           On June 19, 1989, Appellant’s petition for allowance of
           appeal with the Supreme Court of Pennsylvania was
           denied.
              1
                  Judge Saylor passed away unexpectedly in
              December of 1986.

           On [November 13, 1992], Appellant filed his first [PCRA]
           petition, raising one claim that was previously litigated.
           Appellant was represented by Maurice Stone, Esquire, who
           filed an amended petition, withdrew it and then proceeded
           on the first petition. Judge Edenharter denied this petition
           on October 14, 1993; this decision was affirmed by the
           Superior Court on January 6, 1995.

           On September 14, 1998, Appellant filed a second PCRA
           petition, pro se. After being given notice, the petition was
           denied on November 6, 1998. On February 16, 1999,
           Appellant filed a Motion for Sentence Change, which was
           denied on March 3, 1999. On March 8, 2000, this case
           was reassigned to the undersigned. On April [19], 2000,
           we denied Appellant’s Motion for Reconsideration of
           Sentence. On July [17], 2001, Appellant’s request for a
           Change of Plea and Change of Sentence were denied.

           On July 30, 2002, Appellant filed a third PCRA petition.
           After being given notice, it was denied on September 23,
           2002. On January 16, 2004, Appellant filed a Request for
           Consideration, which was denied on January 27, 2004.

           On July 6, 2009, Appellant filed a fourth PCRA petition,
           which, after notice, was denied on July 29, 2009. He then
           filed a Petition for a Writ of Habeas Corpus, which was
           denied on March 18, 2010.[2]

           The current PCRA petition, filed on August 22, 2012, is
           Appellant’s sixth PCRA petition, not counting all the other
           numerous pro se post[-]conviction filings. Nonetheless, as
____________________________________________


2
    The court treated this habeas petition as a PCRA petition.



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         Appellant raised an issue that might meet an exception
         under the time bar, on September 14, 2012, we appointed
         PCRA counsel to represent him and ordered legal briefs to
         be filed by October 15, 2012. A status hearing was set for
         December 17, 2012, but the hearing was continued to
         April 22, 2013, pending the outcome of Commonwealth
         v. Cunningham, 81 A.3d 1, 11 (Pa.2013); a petition for
         writ of certiorari was pending before the United States
         Supreme Court. On April 22, 2013, the matter was again
         deferred pending a decision on the retroactivity of Miller
         v. Alabama, 132 S.Ct. 2455 ([U.S.]2012), the appeal in
         the Cunningham case before the U.S. Supreme Court or
         new legislation. On June 9, 2014, the Supreme Court of
         the United States denied the petition in the Cunningham
         matter. We then denied Appellant’s petition on the basis
         that the state of the law currently in Pennsylvania is that
         the constitutional right exception under the PCRA time bar
         does not apply to Appellant’s case because his judgment is
         final, this matter is now on collateral review and, in accord
         with the Cunningham decision of the Supreme Court of
         Pennsylvania, the Miller decision is not retroactive to
         cases on collateral review.       We dismissed Appellant’s
         petition on July 16, 2014 and denied reconsideration.
         Appellant filed an appeal on August 15, 2014.

Opinion, 10/28/2014, at 1-3.    Both Appellant and the trial court complied

with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issue on appeal:

         Did the trial court err in denying the Appellant’s PCRA
         Petition and finding that Miller v. Alabama does not apply
         retroactively to cases on collateral review?

Appellant’s Brief at 3.

      Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or


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subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is 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).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The

late filing of a petition will be excused if a petitioner alleges and proves:

            (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).    When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).



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       Our Supreme Court denied Appellant’s petition for review on June 19,

1989. Appellant’s judgment of sentence became final when the time to seek

review in the Supreme Court of the United States expired.        42 Pa.C.S. §

9545(b)(3). Therefore, his current petition, filed on August 22, 2012, more

than twenty-three years later, is facially untimely.       See 42 Pa.C.S. §

9545(b)(1).

        Appellant claims the new constitutional right exception to the PCRA

time-bar applies because the Supreme Court of the United States recognized

a new constitutional right made retroactive to cases on collateral review in

Miller. Appellant’s Brief at 10-13. We disagree.

       In Miller, the Supreme Court of the United States found mandatory

life imprisonment without parole for juvenile offenders unconstitutional. 132

S.Ct. at 2469.      On October 30, 2013, the Supreme Court of Pennsylvania

found Miller was not retroactive and did not apply to defendants whose

judgments of sentence were final prior to the issuance of the Miller

opinion.3 Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.2013).

       Appellant maintains that this Court should follow the decision issued in

the United States District Court for the Eastern District of Pennsylvania in

Songster v. Beard, 35 F. Supp. 3d 657 (E.D.Pa.2014). In Songster, the


____________________________________________


3
  Appellant filed his August 22, 2012 PCRA petition within 60 days of the
issuance of the Miller opinion on June 25, 2012.




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court found that the Supreme Court of the United States recognized a new

constitutional rule in Miller, which applied retroactively to cases on collateral

review. Id. at 662-65.4

       We are not bound by Songster.             See, e.g., Commonwealth v.

Lambert, 765 A.2d 306, 315 n.4 (Pa.Super.2000) (“Absent a United States

Supreme Court pronouncement, decisions of federal courts are not binding

on state courts, even when a federal question is involved”). Rather, we are

bound by our Supreme Court’s decision in Cunningham.                 See, e.g.,

Commonwealth v. Wilson, 744 A.2d 290, 294 n.4 (Pa.Super.1999).

Because the Supreme Court of Pennsylvania has found Miller is not

retroactive, it does not apply to Appellant and the trial court did not err in

denying Appellant’s PCRA petition. See Cunningham 81 A.3d at 11.5

       Order affirmed.




____________________________________________


4
  In Songster, the district court addressed a petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. The defendant in Songster had
been convicted and sentenced in Pennsylvania.
5
  The Supreme Court of the United States granted a writ of certiorari in
Montgomery v. Louisiana, ___ U.S. ___, 190 L.Ed.2d 649, 135 S.Ct.781
(U.S.2014), which addresses the retroactivity of Miller v. Alabama, 567
U.S. ––––, 135 S.Ct. 1546, (2012). If the Supreme Court determines Miller
applies retroactively to cases on collateral review, Appellant would have
sixty days from that opinion to file his PCRA petition seeking relief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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