Com. v. Johnson, K.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2015
• Docket: 2020 WDA 2013
• Status: Unpublished

Opinion

J. S76007/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : KEITH JOHNSON, : No. 2020 WDA 2013 : Appellant :

Appeal from the PCRA Order, November 25, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0005882-1985

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED JANUARY 27, 2015

Appellant appeals from the order denying his second petition brought

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to

9546. We affirm.

On May 19, 1985, while 16 years of age, appellant stabbed another

teenager to death on the Ft. Duquesne Bridge in Pittsburgh. On October 18,

1985, a jury convicted appellant of first degree murder; and on July 23,

1986, appellant was sentenced to a mandatory sentence of life

imprisonment without the possibility of parole.

On December 4, 1987, this court affirmed the judgment of sentence;

and on November 2, 1988, our supreme court denied appeal.

Commonwealth v. Johnson, 536 A.2d 825 (Pa.Super. 1987) (unpublished

memorandum), appeal denied, 552 A.2d 250 (Pa. 1988). Appellant’s first J. S76007/14

PCRA petition was filed on July 16, 2010, and was denied on March 30,

2011.

Appellant filed the instant, untimely PCRA petition on July 16, 2012,

within 60 days of the United States Supreme Court’s June 25, 2012 decision

in Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that it is

unconstitutional to sentence individuals who were under 18 years of age at

the time of their offense to mandatory life imprisonment without parole.

Appellant’s petition invoked the after-recognized constitutional right

exception to the time restrictions of the PCRA. See 42 Pa.C.S.A.

§ 9545(b)(1)(iii).

We do not have jurisdiction to review appellant’s petition because

section 9545(b)(1)(iii) requires that the newly recognized right be already

held to apply retroactively. Commonwealth v. Seskey, 86 A.3d 237, 242-

243 (Pa.Super. 2014), appeal denied, 101 A.3d 103 (Pa. 2014). Miller v.

Alabama has not been held to apply retroactively. Moreover, our supreme

court has ruled that Miller v. Alabama would not be applied retroactively to

persons on collateral review. Commonwealth v. Cunningham, 81 A.3d 1

(Pa. 2013). In his present appeal, appellant argues that Cunningham was

wrongly decided. However, as a subordinate court we are unable to reverse

the rulings of our supreme court. Consequently, we are bound by

Cunningham, and are without jurisdiction to review appellant’s petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/27/2015

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