J-S60032-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN K. YOUNG, :
:
Appellant : No. 3783 EDA 2015
Appeal from the PCRA Order December 1, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0323691-1975
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 19, 2016
John K. Young (Appellant) appeals pro se from the December 1, 2015
order that dismissed without a hearing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in part
and reverse in part the order dismissing the petition; vacate Appellant’s
judgment of sentence; and remand for resentencing.
At approximately 6:30 a.m. on March 11, 1975, Miss
Jacqueline Mack, of 2123 Etting Terrace, Philadelphia,
Pennsylvania, heard the sounds of loud screaming and footsteps
coming from the house next door wherein Marlene Mapp and her
family resided. She also heard the voice of one of Mrs. Mapp’s
children crying out to leave his mother alone. Miss Mack
telephoned the police and then telephoned next door. One of
Mrs. Mapp’s children, Larry Mapp, answered the phone and
screamed his mother had been stabbed. Miss Mack then went to
the rear door of the Mapp house and pushed it open. She was
met by Larry who was covered with blood. The police arrived
and found Marlene Mapp lying wedged against her front door at
the foot of the staircase leading to the second floor. There was a
*Retired Senior Judge assigned to the Superior Court.
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trail of blood from a bedroom on the second floor down to the
bottom of the staircase. A woman’s purse was lying open on the
living room sofa with its contents strewn about. The front door
was locked and entrance to the house appeared to have been
effected through the rear door by means of a coat hanger being
inserted through a hole in the glass of a window next to the door
and so manipulated as to unlatch the door.
A post-mortem examination established Marlene Mapp died
from a deep cut of the neck which severed the jugular vein and
the right subclavian artery.
Larry Mapp, six years old at the time of this incident but
seven at the time of trial, testified he was sleeping in the same
bed as his mother when he was awakened by voices and saw a
person he described as “the boy” on the bed on his knees. He
identified “the boy” as [Appellant]. Larry Mapp further testified
that [Appellant] told his mother to tell him to take his five-year-
old sister, Chantel, and leave the room. In the course of doing
so, Larry saw [Appellant] pull out a knife. When this happened,
he ran downstairs to try to find a knife with which to attack the
intruder, but could find none. He then ran back upstairs with his
sister to the other bedroom and [Appellant] then ran downstairs
and out the back door with Larry running after him. Later, he
saw his mother lying against the front door. He spoke to her but
there was no answer. Larry also testified he recognized the
intruder as a youth he had seen hanging out clothes in the
backyard of the house to the rear of his own.
In the course of their investigation, police found a black
scarf with stains of human blood in the backyard of the Mapp
house, and in a search of [Appellant’s] residence, pursuant to a
search warrant, found three butcher knives with one bearing
traces of human blood, a pair of pants, a pair of shoes and a
washcloth, all of which bore stains of human blood.
Commonwealth v. Young, 383 A.2d 899, 900 (Pa. 1978).
Appellant, who was a juvenile at the time of the murder, was inter
alia, convicted of second-degree murder and sentenced to life imprisonment
without possibility of parole. Our Supreme Court affirmed Appellant’s
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judgment of sentence in 1978, id., and subsequent collateral attacks on that
judgment were unsuccessful. See Commonwealth v. Young, 465 A.2d
684, 685 (Pa. Super. 1983) (affirming denial of petition filed under the Post-
Conviction Hearing Act (PCHA)); Commonwealth v. Young, 635 A.2d 209
(Pa. Super. 1993) (unpublished memorandum) (affirming denial of second
PCHA petition). Appellant later sought DNA testing under the PCRA, but his
request was denied, appealed, and affirmed by this Court, inter alia, on the
basis that Appellant’s confession barred him from asserting a claim of actual
innocence. Commonwealth v. Young, 873 A.2d 720 (Pa. Super. 2005).
On July 8, 2010, Appellant filed a PCRA petition wherein he claimed his
sentence was illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct.
2011, 176 L.Ed.2d 825 (2010) (holding unconstitutional sentences of life
imprisonment without parole for non-homicide juvenile offenders). The
PCRA court did nothing. On November 16, 2011, Appellant filed a
supplement to the PCRA petition seeking DNA testing based upon the fact
that our Supreme Court in Commonwealth v. Wright, 14 A.3d 798 (Pa.
2011), overturned the 2005 Young decision of this Court disposing of
Appellant’s earlier request for DNA testing. The PCRA court did nothing. On
July 16, 2012, Appellant filed another supplement to his petition citing, inter
alia, Miller v. Alabama, 132 S.Ct. 2455 (2012). The PCRA court did
nothing. On December 23, 2013, Appellant filed another amendment
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discussing Miller and our Supreme Court’s decision in Commonwealth v.
Cunningham, 81 A.3d 1, 11 (Pa. 2013).
On June 12, 2014, the PCRA court finally acknowledged Appellant’s
filings by issuing a notice of intent to dismiss them as untimely-filed
pursuant to Pa.R.Crim.P. 907. On July 1, 2014, Appellant filed objections,
citing, inter alia, Miller. On December 1, 2015, upon consideration of
Appellant’s PCRA petition, the supplements thereto, and Appellant’s
response to the 907 Notice, the PCRA court dismissed Appellant’s petition.1
Appellant timely filed a notice of appeal.
The timeliness of a post-conviction petition is jurisdictional. See, e.g.,
Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f
a PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
1
That Appellant’s petition went unaddressed for nearly four years despite
his repeatedly bringing it to the court’s attention by filing supplements and
amendments, and then another 17 months elapsed before a final order was
entered allowing Appellant to appeal to this Court, raises serious questions
about whether justice is being served. There is simply no excuse for such
lengthy delays.
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that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b). However, “the one-year time bar proscribed under the
PCRA does not apply to petitions for post-conviction DNA testing….”
Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008).
We begin by addressing the denial of Appellant’s request for DNA
testing. Such a claim is governed by 42 Pa.C.S. § 9543.1.
The statute sets forth several threshold requirements to obtain
DNA testing: (1) the evidence specified must be available for
testing on the date of the motion; (2) if the evidence was
discovered prior to the applicant’s conviction, it was not already
DNA tested because (a) technology for testing did not exist at
the time of the applicant’s trial; (b) the applicant’s counsel did
not request testing in a case that went to verdict before January
1, 1995; or (c) counsel sought funds from the court to pay for
the testing because his client was indigent, and the court refused
the request despite the client’s indigency.
Commonwealth v. Walsh, 125 A.3d 1248, 1254 (Pa. Super. 2015)
(quoting Commonwealth v. Williams, 35 A.3d 44, 49 (Pa. Super. 2011)).
Further,
The text of the statute set forth in Section 9543.1(c)(3) and
reinforced in Section 9543.1(d)(2) requires the applicant to
demonstrate that favorable results of the requested DNA testing
would establish the applicant’s actual innocence of the crime of
conviction. The statutory standard to obtain testing requires
more than conjecture or speculation; it demands a prima facie
case that the DNA results, if exculpatory, would establish actual
innocence.
Id. at 1254-55.
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As noted above, the police recovered numerous blood-stained articles
from Appellant’s residence, as well as one article from the victim’s yard,
which abutted that of Appellant. At trial, the Commonwealth introduced
evidence that the blood on all of the items was human; however, nothing
more, such as blood type, was tested. Young, 873 A.2d at 727. In 2002,
Appellant sought DNA testing of these articles, claiming that the results
would establish that the blood was his own rather than Ms. Mapp’s. Id. at
725. This Court affirmed the PCRA court’s denial of the request, holding that
Appellant’s challenged-and-upheld confession barred him from asserting a
claim of actual innocence. Id. at 727. This Court went on to state the
following:
Moreover, even if we would have found Appellant’s
confession did not bar recourse pursuant to Section 9543.1,
Appellant would still not be entitled to the relief requested. As
the PCRA court noted above, the victim’s son unequivocally
identified Appellant as the person who had broken into their
home and who had ordered him and his little sister out of the
bedroom while producing a knife and holding it toward his
mother. Although Appellant challenged the credibility of Larry
Mapp’s testimony and his identification of Appellant as the
perpetrator, substantial evidence of identification was presented
to the jury for their consideration. Thus, even assuming that the
DNA testing of the pants, shoes, knife and washcloth produced
exculpatory results, it would not be enough to establish
Appellant’s actual innocence of the offense for which he was
convicted.
For the foregoing reasons, Appellant has failed to satisfy
the requirement of 42 Pa.C.S.A. section 9543.1. Accordingly, we
affirm the PCRA court’s order denying Appellant’s request for
DNA testing.
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Id. at 727-28.
In 2011, our Supreme Court rejected the first basis for this Court’s
decision, holding “a confession, in and of itself, is not a per se bar … to a
convicted individual establishing a prima facie case that DNA testing would
establish actual innocence of the crime for which he or she was convicted….”
Wright, 14 A.3d at 817.
Appellant’s request for DNA testing at issue in the present appeal did
not attempt to set forth all of the threshold requirements of Section 9543.1
quoted above. He merely asserted that because this Court’s 2005 decision
had been overruled, he is entitled to the testing. Similarly, in his brief
Appellant only argues, under Wright, that his confession is not a bar to his
meeting the actual-innocence requirement for testing. Appellant’s Brief at
23-30.
Such argument ignores this Court’s prior ruling that the tests, even if
they produced the results Appellant wanted, would not establish that he did
not murder Ms. Mapp. This Court’s prior even-if rejection of the merits of
Appellant’s request for DNA testing constitutes the law of the case,
preventing us from reaching a different conclusion. Commonwealth v.
Reed, 971 A.2d 1216, 1220 (Pa. 2009). Nor has Appellant cited to a factual
or legal change that would warrant our revisiting the issue. Accordingly, we
affirm the PCRA court’s order to the extent that it denied Appellant’s request
for DNA testing.
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We now consider the propriety of the PCRA court’s dismissal as
untimely-filed of Appellant’s claim for resentencing. The petition is facially
untimely, as Appellant’s judgment of sentence became final decades ago.
However, he claims that his petition satisfies the timeliness exception
codified at 42 Pa.C.S. § 9545(b)(1)(iii), for newly-recognized, retroactively-
applicable constitutional rights. Specifically, Appellant asserts that the
holding of the United States Supreme Court in Miller, that mandatory
sentences of life imprisonment without possibility of parole imposed upon
individuals who were juveniles at the time they committed homicides are
unconstitutional, applies to him.
The PCRA court determined that Appellant did not properly invoke that
exception because our Supreme Court held in Cunningham that Miller does
not apply retroactively. However, while this appeal was pending, the United
States Supreme Court in Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
overruled Cunningham by holding that Miller announced a new substantive
rule of law which does apply retroactively. Thereafter, this Court held that
Montgomery renders “retroactivity under Miller effective as of the date of
the Miller decision.” Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.
Super. 2016).
Under Secreti, Appellant’s PCRA petition meets the timeliness
exception provided by 42 Pa.C.S. § 9545(b)(1)(iii). Under Miller,
Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form
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of resentencing.2,3 Accordingly, the order is reversed to the extent that it
denied Appellant’s request for resentencing.
Order affirmed in part and reversed in part. Judgment of sentence
vacated. Case remanded for resentencing.4 Jurisdiction relinquished.
2
The Commonwealth agrees that Appellant is entitled to resentencing under
Montgomery. Commonwealth’s Brief at 7.
3
The court may not resentence Appellant to life imprisonment without the
possibility of parole without unless it considers the appropriate age-related
factors:
at a minimum [the sentencing court] should consider a juvenile’s
age at the time of the offense, his diminished culpability and
capacity for change, the circumstances of the crime, the extent
of his participation in the crime, his family, home and
neighborhood environment, his emotional maturity and
development, the extent that familial and/or peer pressure may
have affected him, his past exposure to violence, his drug and
alcohol history, his ability to deal with the police, his capacity to
assist his attorney, his mental health history, and his potential
for rehabilitation.
Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (quoting
Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)).
4
Appellant is entitled to the assistance of counsel for his resentencing
proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)
(noting that sentencing is a critical stage of a criminal proceeding at which a
criminal defendant has a constitutional right to counsel). According to the
Commonwealth, the Defender Association of Philadelphia was appointed to
represent Appellant on May 25, 2016, for Montgomery purposes.
Commonwealth’s Brief at 5.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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