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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN TORRES. :
:
Appellant : No. 2469 EDA 2018
Appeal from the PCRA Order Entered July 30, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0609281-1989
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 25, 2019
Appellant, Juan Torres, appeals from the July 30, 2018 Order dismissing
as untimely his third Petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On November 14, 1990, a jury convicted Appellant of First-Degree
Murder and related charges for the 1989 fatal shooting of Larry Duncan during
an illicit drug transaction in Philadelphia. Appellant was 18 years old at the
time of the murder. On April 9, 1991, the trial court imposed the mandatory
sentence of life imprisonment. On January 8, 1992, this Court affirmed
Appellant’s Judgment of Sentence, and on November 5, 1992, the
Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Torres, 607 A.2d 1127 (Pa. Super. 1992) (unpublished
memorandum), appeal denied, 615 A.2d 1312 (Pa. 1992). Appellant did not
seek review by the United States Supreme Court. Appellant’s Judgment of
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* Retired Senior Judge assigned to the Superior Court.
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Sentence, therefore, became final on February 3, 1993. See 42 Pa.C.S. §
9545(b)(3); U.S. Sup. Ct. R. 13.
On August 12, 2012, more than nineteen years after his Judgment of
Sentence became final, Appellant filed the instant pro se PCRA Petition, his
third, raising a claim that his sentence is illegal under Miller v. Alabama, 567
U.S. 460 (2012).1 After a multi-year delay, on February 26, 2016, Appellant
filed a pro se Amended PCRA Petition averring that he was entitled to relief
under Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 Finally, on April
2, 2018, Appellant filed a pro se Supplemental PCRA Petition claiming that a
February 18, 2018 Philadelphia Inquirer newspaper article “alerted him of a
pattern of misconduct by Detective Devlin in other homicide cases, similar to
allegations he attempted to raise during his suppression hearing back on May
4, 1990, but was unsuccessful.” Supplemental PCRA Petition, 4/2/18, at 3.
Appellant also asserted that the article alerted him to a 2016 federal civil
complaint filed against Detective Devlin. Id.
On April 17, 2018, the PCRA court issued a Pa.R.Crim.P. 907 Notice
advising Appellant of its intent to dismiss his Petition as untimely without a
hearing. Appellant filed a timely pro se Response. On July 30, 2018, after
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1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470.
2In Montgomery, the U.S. Supreme Court held that its decision in Miller,
supra, applies retroactively. Montgomery, 136 S.Ct. at 732, 736.
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considering Appellant’s Response, the PCRA court dismissed Appellant’s
Petition as untimely. This timely pro se appeal followed.
Appellant raises the following issues for our review:
I. Whether Appellant’s instant PCRA petition predicated upon
the United States Supreme Court’s decision announced in
[Miller], is timely filed under the purview of 42 Pa.C.S. §
9545(b)(1)(iii)?
II. Whether the court’s imposition of an illegal mandatory life
without parole sentence, for a homicide offense committed
while appellant was a juvenile, violates the Eighth
Amendment’s prohibition on [“]cruel and unusual
punishments,[”] as a result of:
(A) Appellant is a juvenile under Pennsylvania Law; and
(B) Equal Protection demand’s Miller’s application.
III. Whether Appellant’s “after discovered evidence claim and
Brady claim,” predicated upon the discovery of Detective
Devlin’s unconstitutional interrogation tactics[,] is timely
filed under purview of 42 Pa.C.S. 9545(b)(1)(i) & (ii); based
upon the discovery of: (i) the Philadelphia Inquirer
newspaper article; (ii) the federal civil complaint filed by
Anthony Wright; and (iii) the district court’s decision in
Anthony Wright’s Civil Complaint?
Appellant’s Br. at 1-2.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
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conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
In order to obtain relief under the PCRA, a petition must be timely filed.
See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely
filing of a petition for post-conviction relief). A petition must be filed within
one year from the date the judgment of sentence became final. 42 Pa.C.S. §
9545(b)(1). Appellant’s Petition, filed more than nineteen years after his
Judgment of Sentence became final, is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however,
if an appellant pleads and proves one of the three exceptions set forth in
Section 9545(b)(1). Any petition invoking a timeliness exception must be filed
within 60 days of the date the claim could have been presented. 42 Pa.C.S §
9545(b)(2).3
Here, Appellant attempts to invoke the timeliness exception under
Section 9545(b)(1)(iii), alleging that his sentence is illegal based on a newly
recognized constitutional right under Miller, which, he argues, is retroactive
in its application pursuant to Montgomery. See Appellant’s Br. at 4; 42
Pa.C.S. § 9545(b)(1)(iii).
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3 Effective December 24, 2018, Section 9545(b)(2) now provides that “[a]ny
petition invoking an exception . . . shall be filed within one year of the date
the claim could have been presented.”
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As long as this court has jurisdiction over the matter, a legality of
sentence issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA Petition over which we
have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto.”).
Appellant filed the Amended PCRA Petition on February 26, 2016, which
was within 60 days of the issuance of the Montgomery decision (decided
January 25, 2016).
Nevertheless, Appellant’s Miller claim fails. Appellant correctly asserts
that the holding in Montgomery is that the rule announced in Miller, supra,
is substantive for purposes of retroactivity. However, because Appellant was
18 years old at the time he committed the murder, Miller is inapplicable. See
Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating that the
holding in Miller is limited to those offenders who were juveniles at the time
they committed their crimes). Further, an en banc panel of this Court has
recently refused to render relief on the brain science argument that Appellant
raises in his Amended PCRA Petition and again in his Brief. See
Commonwealth v. Lee, 206 A.3d 1, 9-11 (Pa. Super. 2019) (en banc)
(holding that appellant, who was over 18 years of age at the time of her
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offense, could not invoke Miller as an exception to the PCRA time-bar, despite
her argument that “immature brain” studies would have established that her
brain was underdeveloped at time of her crime). See also Commonwealth
v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (rejecting the 19-year-old
appellant’s argument based on neuroscientific theories of brain development
that he is entitled to PCRA relief because he was a “technical juvenile” at the
time he committed his crimes). Accordingly, this claim fails to overcome the
PCRA time-bar.
In his Supplemental PCRA Petition, Appellant attempts to invoke the
timeliness exception under Section 9545(b)(1)(ii), which requires Appellant to
plead and prove “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Appellant asserts that when he read
the February 18, 2018 newspaper article he learned the “previously unknown
fact” that Detective Devlin engaged in a pattern of misconduct in other
homicide cases, which, Appellant asserts, “mirror the misconduct that
occurred” in his case. Supplemental PCRA Petition, 4/2/18, at 3. To support
this argument, Appellant provided a copy of the newspaper article, a copy of
the federal civil complaint discussed in the newspaper article, and the district
court’s decision to deny a pre-trial Motion to Dismiss in the federal civil case.
See id. at Exhibit A, B. Appellant’s claim fails to overcome the PCRA time-
bar.
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We agree with the PCRA court that “the newly-discovered information
simply support[s] a previously-known fact.” PCRA Court Opinion at 4.
Specifically, Appellant introduces this evidence to support his claim that
Detective Devlin coerced his pre-trial statement confessing to the crime, a
“previously-known fact” that Appellant litigated unsuccessfully in a Motion to
Suppress prior to his trial. Appellant presents documents that merely
constitute new sources for a previously-known fact, and, thus, Appellant’s
claim fails to raise an exception to the time-bar. See Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (explaining a petitioner does not
satisfy the “newly discovered facts” exception where he merely alleges a newly
discovered source for previously known facts).
Appellant also attempts to invoke Section 9545(b)(1)(ii) by advancing
the argument that the Philadelphia District Attorney’s Office failed to disclose
information it had in its possession regarding Detective Devlin in violation of
its obligation under Brady v. Maryland, 373 U.S. 83 (1963).4 Supplemental
PCRA Petition at 29. Appellant relies on claims in the newspaper article and
federal civil complaint to support his argument that “the Philadelphia District
[A]ttorney’s Office was aware of Detective Devlin and other Philadelphia
Detectives[’] misconduct for decades.” Id. at 29, 31.
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4 In Brady, the U.S. Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87.0
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To invoke this exception, Appellant must prove that, “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 of laws of this
Commonwealth or the Constitution of laws of the United States.” 42 Pa.C.S.
9545(b)(1)(i).
Instantly, Appellant relies on the newspaper article’s report that the
information regarding Detective Devlin’s coercive tactics surfaced because the
Commonwealth disclosed files during discovery in a civil suit and failed to mark
them “confidential.” Supplemental PCRA Petition at 29. Appellant offers no
evidence that this actually occurred, that the files contain information relevant
to his claim, or that the files contained evidence that the Commonwealth
would be required to share under Brady. Accordingly, Appellant has failed to
overcome the PCRA time-bar with this claim.
In conclusion, Appellant has not pleaded and proved the applicability of
any of the PCRA’s timeliness exceptions and, therefore, we are without
jurisdiction to consider the merits of this appeal. The PCRA court properly
dismissed Appellant’s Petition as untimely. The record supports the PCRA
court’s findings and its Order is free of legal error. We, thus, affirm the denial
of PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/19
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