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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE BOOKER,
Appellant No. 2705 EDA 2014
Appeal from the PCRA Order September 9, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0224101-1982
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 08, 2015
Appellant, George Booker,1 appeals pro se from the order dismissing
his petition for collateral relief as untimely under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a proven exception to the
statutory time-bar. Appellant claims the United States Supreme Court’s
holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), should apply
retroactively to him. Miller does not apply. We affirm.
On July 16, 1982, a jury convicted Appellant of murder of the second
degree, robbery, and conspiracy. On March 14, 1984, the court imposed a
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant is also referred to as “George Brooker” in the record and in
previous appeals. Appellant also went by the alias of “Bernard Croaker.”
(See Municipal Court Hearing List, 1/12/82).
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sentence of life imprisonment.2 This Court affirmed judgment of sentence.
(See Commonwealth v. Booker, 501 A.2d 290 (Pa. Super. 1985)
(unpublished memorandum)). Our Supreme Court denied allowance of
appeal on April 2, 1986. (See Commonwealth v. Booker, No. 957 EDA
1985 (Pa. 1986)).3
The conviction arose out of the robbery and murder of Paul Lehman
outside his home in the early morning hours of Tuesday, January 20, 1981
by Appellant and two cohorts.4 Mr. Lehman operated a newsstand which
also sold lottery tickets. Police investigating the crime determined, and
testimony at trial confirmed, that it was well known in Mr. Lehman’s
Philadelphia neighborhood that on Tuesdays he would carry from $10,000 to
$15,000 in cash, the weekly proceeds of the lottery machine, from his home,
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2
The court also sentenced Appellant to a concurrent term of not less than
five nor more than ten years’ imprisonment for conspiracy, not at issue in
this appeal.
3
Because Appellant did not petition for a writ of certiorari in the United
States Supreme Court, his conviction became final on June 2, 1986 (June 1
fell on a Sunday), when the time for doing so expired under the then-
applicable Supreme Court Rule. (See Commonwealth’s Brief, at 8 n.1).
Appellant filed the instant petition on July 2, 2010, twenty-four years after
his judgment of sentence was final. (See PCRA Court Opinion, 12/08/14, at
1). The petition was therefore untimely on its face unless it fell within one of
the three enumerated exceptions to the statutory time-bar. See 42
Pa.C.S.A. § 9545(b)(1).
4
Both of Appellant’s co-conspirators were also convicted and received life
sentences.
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in a brown paper bag, for a required bank deposit with the Pennsylvania
lottery commission. (See N.T. Trial, 7/09/82, at 37).
Significantly, notations in the certified record (and in Appellant’s own
reproduced record) confirm that Appellant was born on September 21, 1962.
Accordingly, on the day of the murder he was over eighteen years old.5
Following his direct appeal, Appellant filed numerous petitions for
collateral relief, alleging a variety of claims including recantation of trial
testimony, the belated proffer of alibi witnesses, his purported exoneration
by fellow inmates who claimed to be the real perpetrators, and accusations
that he was framed by the police. All were rejected and none is at issue in
this appeal. After the PCRA court dismissed the instant petition pursuant to
Pennsylvania Rule of Criminal Procedure 907, (on September 9, 2014), as
untimely with no statutory exception to the time bar applicable, Appellant
timely filed a notice of appeal, on September 15, 2014.6
Appellant raises one question for our review on appeal:
[Is Appellant entitled to PCRA relief because he] was under
the age of 18 when the crime was committed, and [Appellant]
raised the following equal protection claim, under the U.S.
Fourteenth Amendment of the Constitution to assert the new
Eighth Amendment right in Miller v. Alabama, June 6, 2012,
that mandatory sentences of life without parole are considered
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5
Specifically, he was eighteen years, three months, and thirty days old.
6
The PCRA court did not order a Rule 1925(b) statement of errors. The
court filed its Rule 1925(a) opinion (signed 11/17/14) on December 8, 2014.
See Pennsylvania Rule of Appellate Procedure 1925.
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cruel and unusual punishment for any defendant with an
immature brains [sic] [?]
(Appellant’s Brief, at VII) (some capitalization and other punctuation
omitted).
Our standard and scope of review are well-settled.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted).
Here, preliminarily, we note for the sake of completeness and
consistency of the record that Appellant is a serial petitioner; this is his
sixth, or eighth, petition for collateral relief.7 In any event, Appellant’s
repeated claim in the instant petition─that he was a juvenile aged seventeen
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7
The PCRA court identifies Appellant’s instant petition as his sixth. (See
PCRA Court Opinion, 12/08/14, at 1). The Commonwealth states that this is
Appellant’s eighth petition. (See Commonwealth’s Brief, at 2). This Court
has previously noted that the Commonwealth, providing relevant dates for
all filings, maintained that Appellant’s last PCRA petition was his seventh.
(See Commonwealth v. Booker, No. 2005 EDA 2009 (Pa. Super. filed
April 28, 2010, at 1 n.2) (unpublished memorandum)).
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at the time of the murder─is belied by the certified record, as well as his
own reproduced record. (See Court Commitment, 3/14/84 [date of birth
9/21/62]; see also Appellant’s Reproduced Record, at unnumbered page 4,
Philadelphia County Court of Common Pleas Criminal Docket, Defendant
Information [date of birth 09/21/1962]). Accordingly, Appellant’s current
self-serving claim that he was under the age of eighteen at the time the
crime was committed is contradicted by the record. Appellant’s claim has no
merit.
Moreover, even assuming, contrary to the facts of record, that
Appellant was under the age of eighteen when he committed the crime at
issue, his claim would not merit relief. Appellant argues that Miller should
be applied retroactively. (See Appellant’s Brief, at 3-4). We disagree.
The United States Supreme Court has not ruled that Miller is
retroactive. Furthermore, our Supreme Court decided that Miller is not
retroactive, in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013),
cert. denied, 134 S. Ct. 2724 (2014). See also Reed, supra at 144
(determining that there is no reasonable doubt about our Supreme Court’s
conclusion in Cunningham on the non-retroactivity of Miller).
Appellant also cites Graham v. Florida, 560 U.S. 48 (2010), as
modified (July 6, 2010). (See Appellant’s Brief, at 1). Appellant’s reliance
on Graham is misplaced, because Graham by its express terms applied to
juveniles who did not commit homicide. See Graham, supra at 82. Here,
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the jury convicted Appellant of homicide, specifically, murder of the second
degree.
Appellant asks this Court to postpone its decision in his appeal pending
the disposition of Toca v. Louisiana, [135 S. Ct. 781 (2014)], cert.
dismissed, 135 S. Ct. 1197 (2015)]. (See Appellant’s Brief, at 7). However,
as noted, the writ of certiorari in that case has been dismissed:
The United States Supreme Court had granted certiorari in Toca
v. Louisiana, ––– U.S. ––––, 135 S. Ct. 781, 190 L.Ed.2d 649
(2014), cert. dismissed, ––– U.S. ––––, 135 S. Ct. 1197, 191
L.Ed.2d 149 (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. ––––,
135 S. Ct. 1546, ––– L.Ed.2d –––– (2015), which again presents
the Miller [retroactivity] question. Nonetheless, until the United
States Supreme Court issues its decision, Cunningham remains
the final word on the issue in Pennsylvania.
Commonwealth v. Cristina, 2015 WL 1730538 (Pa. Super. filed April 14,
2015) (filed April 14, 2015) (Mundy, J., concurring, at n.1).
Appellant was not a juvenile when he committed the crime at issue.
But even if he were, our Supreme Court has decided in Cunningham that
Miller does not apply retroactively in Pennsylvania. The PCRA court
properly dismissed Appellant’s petition as untimely with no exception to the
statutory time bar proven.
Our reasoning differs in part from that of the PCRA court. However,
we may affirm the PCRA court’s order on any basis, provided it is legally
correct. See Reed, supra at 144.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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