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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
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 Super. 2000) (unpublished memorandum),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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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
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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
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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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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
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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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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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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
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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.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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