Com. v. Cristina, J.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2015
• Docket: 601 WDA 2013
• Status: Published

Opinion

J-S13002-15

2015 PA Super 74

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

JEFFREY CRISTINA

Appellee No. 601 WDA 2013

Appeal from the PCRA Order March 20, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001478-1976 CP-02-CR-0002462-1976 CP-02-CR-0002464-1976

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

CONCURRING STATEMENT BY MUNDY, J.: FILED APRIL 14, 2015

I concur in the result reached by the Court. As the Majority notes, the

United States Supreme Court denied Appellant’s petition for a writ of

certiorari on February 21, 1979. Majority Opinion at 2. Therefore,

Appellant’s judgment of sentence became final on this date. 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[]”). Appellant filed the instant

petition on July 27, 2012, which rendered it patently untimely.

“This Court has recognized that a new rule of constitutional law is

applied retroactively to cases on collateral review only if the United States J-S13002-15

Supreme Court or our Supreme Court specifically holds it to be retroactively

applicable to those cases.” Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (emphasis added). As the instant case comes to this

Court, neither our Supreme Court or the United States Supreme Court has

held that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012),

applies retroactively.1 In my view, that is the end of the inquiry.

Our Supreme Court’s opinion in Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.

2724 (2014), speaks for itself. Although the Majority is correct that

Cunningham did not consider every theory of retroactivity under Teague

v. Lane, 489 U.S. 288 (1989) (plurality), and Danforth v. Minnesota, 552

U.S. 264 (2008), Cunningham’s overall conclusion nevertheless remains

that Miller does not apply retroactively to cases in which the judgment of

sentence has become final. See generally Majority Opinion at 8.

Accordingly, with the foregoing observations, I respectfully concur in the

Court’s result that the PCRA court’s order must be reversed.

____________________________________________ 1 The United States Supreme Court had granted certiorari in Toca v. Louisiana, 135 S. Ct. 781 (2014), cert. dismissed, 135 S. Ct. 1197 (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. ---, 2015 WL 1280236 (2015), which again presents the Miller retroactively question. Nonetheless, until the United States Supreme Court issues its decision, Cunningham remains the final word on the issue in Pennsylvania.

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