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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VINCENT D. SPENCER
Appellant No. 446 EDA 2016
Appeal from the PCRA Order dated January 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0722561-1986
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 23, 2017
Appellant, Vincent D. Spencer, appeals from the order dismissing his
fourth Post Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant
contends that although he was thirty-one years old when he committed
second-degree murder (among other crimes), he is entitled to relief under
Miller v. Alabama, 132 S. Ct. 2455 (June 25, 2012) (prohibiting juveniles
from being sentenced to life without parole), and Montgomery v.
Louisiana, 136 S. Ct. 718 (Jan. 25, 2016) (holding that Miller applies
retroactively). He also contends all prior trial, direct appeal, and PCRA
counsel were ineffective. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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We repeat the facts and procedural history that were set forth by this
Court in resolving Appellant’s first PCRA petition, which was filed on
February 24, 1992:
On February 3, 1988, appellant was convicted by a jury of
second degree murder, robbery, burglary, and possessing an
instrument of crime. Sandra Palmer Mitchell, the victim’s
girlfriend, was an eye witness to the crime and testified as
follows. On June 15, 1986, the victim, Charles Miller, had two
arguments with a man whose nickname was Jingles. The
arguments transpired just outside Mr. Miller’s apartment. Ms.
Mitchell did not see Jingles during the arguments but heard his
voice. Shortly thereafter, appellant broke into Miller’s apartment,
confronted the victim, and demanded money. Ms. Mitchell
immediately recognized appellant’s voice as that of the individual
who had argued with Mr. Miller earlier. Mr. Miller struggled with
appellant and was shot to death. Ms. Mitchell was shown a
photographic array containing appellant’s picture and
immediately identified him as the assailant.
Following the trial, appellant was sentenced to life
imprisonment [on February 3, 1988]. We affirmed on direct
appeal, Commonwealth v. Spencer, 397 Pa. Super. 647, 571
A.2d 506 (1989), and the Supreme Court denied further review.
Commonwealth v. Spencer, 525 Pa. 645, 581 A.2d 571
(1990).
Commonwealth v. Spencer, No. 1442 Philadelphia 1994, at 1-2 (Pa.
Super., Mar. 10, 1995). This Court ultimately denied Appellant relief on his
claims that, among other things, counsel was ineffective by preventing him
from testifying at trial and failing to present the testimony of alibi witnesses.
Id. at 2-3.
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Appellant filed his second PCRA petition on January 8, 1997, which the
PCRA court dismissed as untimely.2 This Court affirmed the dismissal on July
16, 1998. Commonwealth v. Spencer, No. 2708 Philadelphia 1997 (Pa.
Super., July 16, 1998), allocatur denied, 416 E.D. Alloc. 1998, 1999 WL
165709 (Pa., Mar. 26, 1999).
The PCRA court docketed Appellant’s third PCRA petition on April 25,
2007. The PCRA court, on October 16, 2008, dismissed this petition as
untimely. Appellant did not appeal.
On August 13, 2012, Appellant filed this pro se PCRA petition, his
fourth. On November 17, 2015, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss.3 Appellant did not file a response, and the
PCRA court dismissed the petition as untimely on January 15, 2016.4 On
February 7, 2016, Appellant filed a counseled notice of appeal, and the PCRA
court did not issue a Pa.R.A.P. 1925(b) order.
____________________________________________
2
“The 1995 PCRA amendments provided for a ‘transitional, statutory grace
period’ of one year, applicable to first petitions in cases where the judgment
of sentence became final before the January 16, 1996 effective date of the
1995 amendments. Thus, in such an instance, a PCRA petition is timely if it
was filed no later than January 16, 1997.” Commonwealth v. Robinson,
837 A.2d 1157, 1158 n.3 (Pa. 2003) (citation omitted and emphasis added).
3
The record does not reveal the reason for the considerable delay in
disposition.
4
As discussed below, Montgomery v. Louisiana was issued by the U.S.
Supreme Court on January 25, 2016, between the PCRA court’s dismissal
and the date Appellant filed his notice of appeal.
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Appellant raises two issues:
Whether the trial court erred in denying appellant’s PCRA
petition where he indicated that he was entitled to relief
pursuant to the rulings in the United States Supreme Court
cases of Miller v. Alabama and Montgomery v. Louisiana.
Whether all counsel, trial, direct appeal and PCRA were
ineffective and whether appellant can obtain relief from such
ineffectiveness where although the instant Petition was filed
outside the one year time limitation, the Holding in McQuiggin
v. Perkins and Martinez v. Ryan would apply to his case
where his PCRA Petition was pending when McQuiggin was
decided and the trial court did not file a 1925(b) order.
Appellant’s Brief at 11.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super.) (en banc) (citation omitted),
appeal denied, 839 A.2d 352 (Pa., Dec. 1, 2003).
On appeal, Appellant contends that although he was thirty-one when
he committed the crimes in question, Miller, which was held by
Montgomery to be retroactively applicable to cases on collateral review,
should apply to his case. He attacks the mandatory nature of a life-without-
parole sentence for second-degree murder and posits that the mental age of
the defendant should govern whether a life sentence should be imposed. His
argument, we hold, even if preserved, lacks merit.
As our Supreme Court has explained:
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the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). The three
exceptions to the general one-year time limitation are:
(i) 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 or
laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) 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; or
(iii) 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. § 9545(b)(1).
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Instantly, Appellant filed his petition on August 13, 2012, within sixty
days of the Miller decision, but over three years prior to the Montgomery
decision. And the PCRA court dismissed Appellant’s petition on January 15,
2016, just ten days before the Supreme Court decided Montgomery. Thus,
neither Appellant nor the PCRA court could have known of, let alone
addressed, the import of Montgomery.
We need not quibble with whether Appellant’s argument has been
preserved, however, because neither Miller nor Montgomery apply to
Appellant. The only exception to the time-bar in Section 9545(b) that could
be applicable here is Section 9545(b)(1)(iii), relating to assertion of a newly-
recognized constitutional right — namely, the right of a juvenile under Miller
not to be sentenced to life without parole. Appellant does not qualify for
application of that right because he was not a juvenile when he committed
the murder; rather, he was thirty-one years old. See Miller, 132 S. Ct. at
2460 (holding only that mandatory life without parole sentences for
individuals under eighteen at the time of their crimes are
unconstitutional); Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa.
Super. 2016) (non-juvenile petitioners “at the time they committed murder
are not within the ambit of the Miller decision and therefore may not rely on
that decision to bring themselves within the time-bar exception in Section
9545(b)(1)(iii)”). Appellant’s exhortations that the holdings of Miller and
Montgomery should be construed to include adult defendants who were
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under the mental age of eighteen when they committed the offenses at issue
lack support — nothing in those decisions provides that they may be applied
to a person physically eighteen years or older who has a “mental age” of less
than eighteen.
Appellant also attempts to invoke a timeliness exception based on
McQuiggin v. Perkins, 133 S. Ct. 1924 (May 28, 2013), and Martinez v.
Ryan, 132 S. Ct. 1309 (Mar. 20, 2012). Initially, Appellant failed to invoke
McQuiggin or Martinez in his petition. Indeed, Appellant filed his petition
on August 13, 2012, well before McQuiggin was issued. Thus, Appellant
cannot raise either for the first time on appeal. See generally Pa.R.A.P.
302. Regardless, both McQuiggin and Martinez are inapposite.
In McQuiggin, “the United States Supreme Court held that petitioners
who assert a convincing actual innocence claim may thereby invoke the
miscarriage of justice exception to overcome the federal habeas corpus
statute of limitations.” Commonwealth v. Brown, 143 A.3d 418, 420 (Pa.
Super. 2016) (summarizing McQuiggin, supra). This Court in Brown
explained, however, that federal “decisions pertaining to federal habeas
corpus law[, such as McQuiggin, are] irrelevant to our construction of the
timeliness provisions set forth in the PCRA.” Id. at 420-21 (emphasis
added).
In Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016), our
Supreme Court addressed the import of Martinez. In Martinez, “the High
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Court altered the federal law of procedural default to allow post-conviction
petitioners to have their waived claims of trial counsel ineffectiveness
reviewed in federal habeas corpus proceedings where post-conviction
counsel never raised such claims.” Robinson, 139 A.3d at 183 (footnote
omitted) (summarizing holdings of Martinez, supra, and Trevino v.
Thaler, 133 S. Ct. 1911 (2013)). The defendant in Robinson urged the
Court to permit him to challenge counsel’s effectiveness “for the first time in
an otherwise untimely filed PCRA petition,” Robinson, 139 A.3d at 184, by
creating an equitable exception to the PCRA’s timeliness requirements. The
Supreme Court declined, reasoning, inter alia, that the defendant’s
proposed change in procedure would be in direct contravention
of the legislatively created time-bar of the PCRA and the limited
statutory exceptions provided therein. This Court has no
authority to carve out equitable exceptions to statutory
provisions and the federal jurisprudence cited by [the defendant]
neither requires nor authorizes our doing so.
Id. at 187. Thus, Pennsylvania courts have declined to construe McQuiggin
and Martinez as creating additional exceptions to the PCRA’s timeliness
requirements. Because the PCRA court did not err in concluding that
Appellant failed to plead and prove any of the exceptions to the PCRA’s
timeliness requirements, it properly dismissed Appellant’s petition and did
not have to address his ineffectiveness claims. See Wilson, 824 A.3d at
833. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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