J-S40022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT BOYD
Appellant No. 2899 EDA 2014
Appeal from the PCRA Order September 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1202951-1981
BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2016
Appellant, Vincent Boyd, appeals from the September 5, 2014 order,
dismissing, as untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm in part, reverse in part, vacate the judgment of sentence,
and remand for resentencing.
On May 3, 1983, the trial court imposed a mandatory, aggregate
sentence of life imprisonment without the possibility of parole, after
Appellant was found guilty of one count each of second-degree murder,
robbery, and criminal conspiracy.1 The parties agree that Appellant was
under 18 years of age at the time of the offenses. Appellant’s Brief at 4;
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1
18 Pa.C.S.A. §§ 2502(b), 3701 and 903(a), respectively.
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Commonwealth’s Brief at 16. This Court affirmed the judgment of sentence
on April 19, 1985, and our Supreme Court denied Appellant’s petition for
allowance of appeal on March 31, 1986. Commonwealth v. Boyd, 500
A.2d 809 (Pa. Super. 1985), appeal denied, 619 E.D. Alloc. Dkt. 1985 (Pa.
1986). Appellant did not seek a writ of certiorari from the United States
Supreme Court. Thereafter, Appellant filed petitions for post-conviction
relief in 1988, 1997 and 2005, none of which earned him relief. Appellant
filed the instant petition on October 21, 2008. After several amendments,
the PCRA court dismissed the same as untimely on September 5, 2014.
Appellant filed a timely notice of appeal on October 3, 2014.2
On appeal, Appellant presents the following issue for our review.
I. Did the PCRA court err when it dismissed
[Appellant]’s various [a]mended [p]etitions
without granting a hearing, and all where
[Appellant] pled and proved that he was
entitled to relief and entitled to an evidentiary
hearing?
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
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2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Here, the PCRA court dismissed Appellant’s petition as untimely,
concluding it lacked jurisdiction to consider the merits of the same.
Pennsylvania law makes clear that when “a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.”
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation
omitted), appeal denied, 101 A.3d 103 (Pa. 2014). A petition is timely if it is
filed within one year of the date on which the judgment of sentence became
final. 42 Pa.C.S.A. § 9545(b)(1). “However, an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).
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Here, as noted above, our Supreme Court denied allocatur on March
31, 1986. As Appellant did not seek a writ of certiorari from the United
States Supreme Court, his judgment of sentence became final on May 30,
1986, when the period for filing a certiorari petition expired. 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[]”); U.S. S. Ct. R. 20.1 (former
Rule noting that the certiorari filing period was 60 days). Appellant filed the
instant petition on October 21, 2008. As a result, it is facially untimely.
In this case, Appellant acknowledges that his petition is facially
untimely, but raises two purported time-bar exceptions, which we address in
turn. First, Appellant avers that the newly-discovered fact exception at
Section 9545(b)(1)(ii) applies. Appellant’s Brief at 19. Specifically,
Appellant argues that his discovery of the medical examiner’s file showed
that the assistant medical examiner lied during his testimony at Appellant’s
trial. Id. at 10-12.
Our Supreme Court has previously described a petitioner’s burden
under the newly-discovered evidence exception as follows.
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must establish that: 1) “the facts upon which the
claim was predicated were unknown” and 2) “could
not have been ascertained by the exercise of due
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diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
added).
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in
original). “Due diligence demands that the petitioner take reasonable steps
to protect his own interests. A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of due diligence. This
rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a
separate time limitation and must be filed within
sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2).
The sixty (60) day time limit … runs from the date
the petitioner first learned of the alleged after-
discovered facts. A petitioner must explain when he
first learned of the facts underlying his PCRA claims
and show that he brought his claim within sixty (60)
days thereafter.
Id. (some citations omitted). Our Supreme Court has held that Section
9545(b)(2) also requires a showing of due diligence insofar that a petitioner
must file the petition within 60 days that the claim could have first been
presented. Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),
cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
In this case, Appellant argues that he first became aware of the
additional files, which are from 1981-1982, “on or about August 26, 2008,”
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after an investigator, hired by Appellant’s nephew and co-defendant,
Courtney Boyd, procured and mailed them to Courtney Boyd on August 15,
2008.3 Appellant’s Brief at 19. The investigator was retained by Courtney
Boyd on January 6, 2005. Id. Even assuming that Courtney Boyd’s efforts
may be imputed to Appellant for the purposes of Section 9545(b)(1)(ii),
Appellant has not forwarded any argument as to why he could not have
pursued his claim earlier, between 1981 and 2005, especially given his
multiple prior PCRA petitions. Appellant argues “that any duty of due
diligence arose only after [Appellant] was placed on notice that something
was amiss and [his] filing within 60 days was sufficient under 42 Pa.C.S.A.
§ 9545(b)(1)(ii).” Appellant’s Brief at 22. We reject this argument, as
noted above, the burden was on Appellant to explain why these documents
from the 1980s, prepared before trial, could not have been discovered
earlier. See Williams, supra. He has not done so in this case. Based on
these considerations, we conclude Appellant has not satisfied the newly-
discovered fact exception to the time-bar. See Bennett, supra.
Appellant next argues that his petition is timely under the new
constitutional right exception at Section 9545(b)(1)(iii) because the United
States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455
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3
Courtney Boyd’s appeal is currently pending in this Court at 2911 EDA
2014.
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(2012) applies retroactively to cases on collateral review.4 Appellant’s Brief
at 23, 24. In Miller, the Supreme Court held the Cruel and Unusual
Punishment Clause of the Federal Constitution forbids the imposition of a
mandatory sentence of life imprisonment without the possibility of parole
upon a minor, even for a homicide. Miller, supra at 2460. On January 25,
2016, the Supreme Court decided Montgomery v. Louisiana, 136 S. Ct.
718 (2016), which concluded that Miller is to be applied retroactively to
cases on state collateral review. Montgomery, supra at 736.
Given that Appellant is correct that Miller is retroactive to cases on
collateral review, we now address whether we may afford him a remedy at
this juncture. Section 9545(b)(1)(iii) permits an exception to the PCRA
time-bar when the petition in question alleges and proves “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.A. § 9545(b)(1)(iii) (emphasis added). In
Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002) our Supreme
Court held that the General Assembly’s use of the past tense in the phrase
“has been held” in Section 9545(b)(1)(iii) means that the applicable
“retroactivity determination must exist at the time that the petition is filed.”
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4
Appellant amended his PCRA petition on December 16, 2013 to include a
claim based on the United States Supreme Court’s decision in Miller.
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Id. at 502. As noted above, Appellant’s petition was initially filed on
October 21, 2008 and amended to include Miller on December 16, 2013,
but Montgomery was not decided until January 25, 2016.
However, on February 9, 2016, this Court examined Abdul-Salaam
and held that any petition filed between Miller and Montgomery would be
considered timely for the purposes of both Section 9545(b)(1)(iii) and
Section 9545(b)(2). Commonwealth v. Secreti, 134 A.3d 77, 82-83 (Pa.
Super. 2016). The Court explained that this was necessary to “harmonize
the PCRA requirements with Montgomery, Miller, and Abdul-Salaam and
simultaneously achieve the justice this law was designed to promote.” Id.
at 82. Therefore, consistent with Secreti, Appellant’s petition was timely
and Miller does apply to his case.5 Furthermore, as noted above, Appellant
was given a mandatory sentence of life imprisonment without the possibility
of parole, and the Commonwealth acknowledges that Appellant was a minor
at the time of the offense. Appellant’s Brief at 2; Commonwealth’s Brief at
7. As a result, Appellant is entitled to resentencing, consistent with
Montgomery, Miller, and Commonwealth v. Batts, 66 A.3d 286 (Pa.
2013).6
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5
The Commonwealth agrees that Appellant is entitled to resentencing.
Commonwealth’s Brief at 16, 18.
6
We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
(Footnote Continued Next Page)
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Based on the foregoing, we conclude Appellant’s PCRA petition was
timely filed as to his sentencing claim, and he is entitled to resentencing in
light of Miller, Montgomery and Secreti.7 However, we also conclude that
Appellant’s PCRA petition as to his claim of newly-discovered evidence is
time-barred. Accordingly, the PCRA court’s September 5, 2014 order is
affirmed in part and reversed in part, the May 3, 1983 judgment of sentence
is vacated, and the case is remanded for resentencing, consistent with this
memorandum.
Order affirmed in part and reversed in part. Judgment of sentence
vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
_______________________
(Footnote Continued)
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]” 18
Pa.C.S.A. § 1102.1(a), (c).
7
On remand, the PCRA court shall appoint counsel for Appellant, because
sentencing is a critical stage of a criminal proceeding, requiring counsel.
See generally Commonwealth v. Phillips, 93 A.3d 847, 854 (Pa. Super.
2014) (citation omitted).
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