J-S13002-15
2015 PA Super 74
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEFFREY CRISTINA
Appellee No. 601 WDA 2013
Appeal from the PCRA Order March 20, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001478-1976
CP-02-CR-0002462-1976
CP-02-CR-0002464-1976
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
CONCURRING STATEMENT BY MUNDY, J.: FILED APRIL 14, 2015
I concur in the result reached by the Court. As the Majority notes, the
United States Supreme Court denied Appellant’s petition for a writ of
certiorari on February 21, 1979. Majority Opinion at 2. Therefore,
Appellant’s judgment of sentence became final on this date. See 42
Pa.C.S.A. § 9545(b)(3) (stating, “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[]”). Appellant filed the instant
petition on July 27, 2012, which rendered it patently untimely.
“This Court has recognized that a new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
J-S13002-15
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases.” Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014) (emphasis added). As the instant case comes to this
Court, neither our Supreme Court or the United States Supreme Court has
held that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012),
applies retroactively.1 In my view, that is the end of the inquiry.
Our Supreme Court’s opinion in Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.
2724 (2014), speaks for itself. Although the Majority is correct that
Cunningham did not consider every theory of retroactivity under Teague
v. Lane, 489 U.S. 288 (1989) (plurality), and Danforth v. Minnesota, 552
U.S. 264 (2008), Cunningham’s overall conclusion nevertheless remains
that Miller does not apply retroactively to cases in which the judgment of
sentence has become final. See generally Majority Opinion at 8.
Accordingly, with the foregoing observations, I respectfully concur in the
Court’s result that the PCRA court’s order must be reversed.
____________________________________________
1
The United States Supreme Court had granted certiorari in Toca v.
Louisiana, 135 S. Ct. 781 (2014), cert. dismissed, 135 S. Ct. 1197 (2015),
to decide the retroactivity of Miller. However, the writ of certiorari was
dismissed upon written agreement of the parties under Supreme Court Rule
46(1) on February 3, 2015. On March 23, 2015, the Supreme Court granted
certiorari in Montgomery v. Louisiana, --- U.S. ---, 2015 WL 1280236
(2015), which again presents the Miller retroactively question.
Nonetheless, until the United States Supreme Court issues its decision,
Cunningham remains the final word on the issue in Pennsylvania.
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