J-S58016-14



                                  2014 PA Super 280



COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MICHAEL REED,

                            Appellant                   No. 1956 WDA 2013


           Appeal from the PCRA Order Entered on December 9, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006853-1990


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

CONCURRING OPINION BY BENDER, P.J.E.:               FILED DECEMBER 19, 2014

        While I concur in the Majority’s result, I disagree with the Majority’s

conclusion that Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

stands for the blanket proposition that Miller v. Alabama, 132 S.Ct. 2455

(2012), is not retroactive.

        Specifically, I believe the Majority’s statement that “the question of

whether Miller represents a watershed rule has been addressed by our

Supreme Court” inaccurately reflects the Supreme Court’s holding in

Cunningham. Majority Opinion at 11.            I note that the Cunningham Court

acknowledged that

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*
    Retired Senior Judge assigned to the Superior Court.
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        Teague v. Lane[1] delineated a general rule of non-retroactivity
        for new procedural, constitutional rules announced by the Court,
        … subject to two narrow exceptions. … [T]he exceptions extend
        to “rules prohibiting a certain category of punishment for a class
        of defendants because of their status or offense,” and
        “watershed rules of criminal procedure implicating the
        fundamental fairness and accuracy of the criminal proceeding.”

Cunningham, 81 A.3d at 4 (internal citations omitted). The Cunningham

Court then analyzed whether Miller was retroactive pursuant to the first

Teague exception. Ultimately, the Court concluded that “the first Teague

exception does not apply to the Miller rule,” because, “by its own terms, the

Miller holding ‘does not categorically bar a penalty for a class of offenders.’”

Cunningham, 81 A.3d at 10 (internal citations omitted).

        Significantly, the Cunningham Court then went on to state: “As to the

second Teague exception, as we have previously noted, Appellant has not

developed his arguments in such terms.”              Id.    In doing so, the

Cunningham Court acknowledged that the question of whether Miller

represented a so-called “watershed rule of criminal procedure” was not

before them.

        The Cunningham Court then questioned whether the United States

Supreme Court would find that Miller presents a watershed rule:

        We will say that, given the high importance attached by the
        Miller majority to the new rule which it discerned, it seems
        possible that some Justices of the United States Supreme Court
        may find the rule to be of the watershed variety…. We doubt,
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1
    109 S.Ct. 1060 (1989) (plurality).



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       however, that a majority of the Justices would broaden the
       exception beyond the exceedingly narrow … parameters reflected
       in the line of decisions referenced by the Commonwealth.
       According to the Court, the exception is limited to “sweeping”
       changes on the order of Gideon v. Wainwright;[2]
       modifications of a less broadscale nature, while they may be
       very important, simply do not require retroactive application,
       under the second Teague exception.

Id. at 10.

       The Majority interprets this discussion as a holding, stating that “there

is   no   reasonable     doubt    about        our   Supreme   Court’s   conclusion   in

Cunningham on the non-retroactivity of Miller.”                Majority Opinion at 12.

However, I believe the Cunningham Court’s discussion regarding the

second Teague exception             is dicta.        First, the   Cunningham     Court

acknowledged that the issue of whether Miller represents a “watershed rule”

had not been raised by the appellant. In addition, the Court noted that it

was speculating as to how the United States Supreme Court might rule on

the issue, and it did not purport to undertake its own analysis. Finally, the

Cunningham Court explicitly expressed its uncertainty with regard to how

the United States Supreme Court might theoretically decide the issue. The

Court noted that it “seems possible that some Justices… may find the rule to

be of the watershed variety,” but “doubt[ed] that a majority of the Justices

would” reach that conclusion. Cunningham at 10. Thus, I believe that the


____________________________________________


2
  83 S.Ct. 792 (1963) (holding that all indigent defendants charged with
felonies are entitled to appointed counsel).



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question of whether Miller represents a procedural watershed rule requiring

retroactive application has not yet been addressed in this Commonwealth.

      Even though the Pennsylvania Supreme Court has not explicitly

foreclosed the possibility that Miller is retroactive under the second Teague

exception, Appellant nonetheless has failed to prove an exception to the

PCRA time bar.     Recently, our Court addressed the retroactively-applied

constitutional right exception to the PCRA time bar, noting:

      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 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.

Commonwealth v. Seskey, 86 A.3d 237, 242-243 (Pa. Super. 2014)

(quoting Commonwealth v. Copenhofer, 941 A.2d 646, 649-650 (Pa.

2007)).

      While I believe the question of whether the constitutional right

recognized in Miller represents a “watershed rule” is undecided in

Pennsylvania, our Supreme Court has not yet affirmatively held “in the past

tense” that Miller is retroactive.   On these grounds, I am constrained to

conclude that Appellant has failed to prove an exception to the PCRA time


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bar, and this Court is without jurisdiction to consider the merits of his facially

untimely PCRA petition. Accordingly, I concur with the Majority’s disposition

to grant counsel’s petition to withdraw and affirm the order of the trial court

dismissing Appellant’s PCRA petition.




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