J-S69033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STAN ROSENTHAL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1481 EDA 2019

Appeal from the PCRA Order Entered May 3, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0607691-1986

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 06, 2020

Appellant, Stan Rosenthal, pro se, appeals from the order entered 

May 3, 2019, that dismissed his second petition filed under the Post Conviction 

Relief Act (“PCRA”)1 without a hearing. We affirm.

The facts and procedural history underlying this appeal are as follows:

Police charged Appellant[, born March 6, 1958,] with first degree 

murder in the 1986 fatal beating and stabbing of his girlfriend, 

Dawn Teper. . . . Appellant admitted to police that he assaulted 

Dawn but insisted his attack resulted from heat of passion and his 

altered perception of reality due to drug abuse. Appellant filed a 

motion to suppress his statements to police, but the trial court 

denied the motion. Appellant waived his right to a jury trial in 

exchange for the Commonwealth’s promise not to seek the death 

penalty. 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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The trial court rejected Appellant’s argument that he was 

incapable of forming the specific intent to kill at the time of the 

murder due to ingestion of a great quantity of drugs. Appellant 

claimed his use of drugs was involuntary due to an addiction that 

he developed from use of drugs over a long period of time. 

Instead, the court credited testimony that Appellant previously 

had threatened to kill Dawn if she left him and concluded he acted 

on that threat. The court also gave little weight to the fact that a 

psychiatrist who saw Appellant after he was arrested concluded 

he was depressed and needed further observation to prevent a 

possible suicide. The court gave more weight to the fact that tests 

administered at the hospital failed to detect any residue of 

narcotics. It convicted Appellant of first degree murder and 

possession of an instrument of crime. The court immediately 

imposed a mandatory life sentence for first degree murder. On

July 27, 1989, the trial court imposed a two and one-half to five 

year sentence for possession of an instrument of crime concurrent 

to the life sentence it previously imposed for murder.

Appellant filed a direct appeal, and we affirmed the judgment of 

sentence. Commonwealth v. Rosenthal, 583 A.2d 835 

(Pa.Super. 1990) (unpublished memorandum opinion). Appellant 

filed a petition for reargument that we denied. Next, Appellant 

filed a petition for remand for an evidentiary hearing to develop a 

factual basis in support of the claims of ineffective assistance of 

counsel he had made on direct appeal. We also denied this 

petition. Appellant then filed a petition for allowance of appeal, 

arguing that our Supreme Court should reconsider its decision in 

Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990). 

In Young, the Court concluded that defendants were not denied 

their constitutional rights under the fifth and sixth amendments to 

the United States Constitution when they are not informed about 

the potential harm to themselves by not consulting with an 

attorney before making a statement. Our Supreme Court denied 

Appellant’s request for an appeal on May 13, 1991. Appellant then 

filed a writ of certiorari to the United States Supreme Court, which 

that Court denied on December 16, 1991. Finally, Appellant filed 

[a] PCRA petition, his first, on January 12, 1996.

Commonwealth v. Rosenthal, No. 4334 Philadelphia 1996, unpublished 

memorandum at 1-3 (Pa. Super. filed October 23, 1998). On October 31, 
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1996, the PCRA court denied Appellant’s first PCRA petition. Id. at 1. On 

October 23, 1998, this Court affirmed that denial of PCRA relief. Id.

On March 28, 2016, Appellant pro se filed his second PCRA petition, 

which stated:

[Appellant] concedes that his current PCRA petition is not filed 

within one year of the date his judgment of sentence became 

final.[

2] However, [Appellant]’s claim fulfills the exception of 42 

Pa.C.S. §9545(b)(1)(iii).

[Appellant] claims that the US Supreme Court’s decision in 

Montgomery [v. Louisiana, 136 S. Ct. 718 (2016),] that held 

the Court’s previous ruling in Miller [v. Alabama, 567 U.S. 460 

(2012),] applied retroactively, “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 the Court to apply retroactively.”

PCRA Petition, 3/28/2016, at 5.

On March 12, 2019, the PCRA court entered a notice of intent to dismiss 

all claims without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it 

lacked jurisdiction over Appellant’s petition, because the petition was untimely 

and failed to satisfy an exception to the PCRA’s time bar. On March 25, 2019, 

Appellant filed a response that did not request to amend the PCRA petition.

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2 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 one 

of the three exceptions to the time limitations for filing the petition set forth 

in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).
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On May 3, 2019, the PCRA court dismissed Appellant’s petition. On 

May 13, 2019, Appellant filed this timely appeal.3

Appellant presents the following issues for our review:

(1)

Did the PCRA [c]ourt err in dismissing [A]ppellant[’]s PostConviction Relief Act Petition as untimely which [A]ppellant filed 

within 60-days of MONTGOMERY V. LOUISIANA 136 S.Ct 718 

2018 challenging whether the Act of October 25, 2012 P.L. 204 

which authorizes as to findings of guilt for First and Second Degree 

Murder sentences of 20,25,30 and 35 years to life and did such 

repeal for similar conviction 18 Pa C.S.A. §1102(a)-sentence for 

first degree murder which authorizes death and life imprisonment 

and 18 Pa C.S.A.§1102(b)-sentence for second degree murder 

which authorizes life imprisonment?

(2)

Whether where the United States Supreme Court decision 

invalidating mandatory minimum and maximum sentencing 

statutes and other decisions invalidating mandatory death penalty 

statutes and statutes authorizing mandatory life imprisonment as 

to juveniles create a Constitutional Right which wasn’t

recognize[d] as such satisfies the One year time limitations of 42 

Pa C.S. §9545(b)(1)(iii)?

Appellant’s Brief at 5.

“We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and are free of legal error.” 

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

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3 Appellant filed his statement of errors complained of on appeal on July 29, 

2019.
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Initially, we observe that Appellant is correct that the United States 

Supreme Court in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held 

that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively; Miller

held “that mandatory life without parole for those under the age of 18 at the 

time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and 

unusual punishments.’” Id. at 465. Petitioners who were at least 18 years 

old at the time of their crimes – such as Appellant, who was 28 years old --

“are not within the ambit of the Miller decision [and its corollary, 

Montgomery,] and therefore may not rely on that decision to bring 

themselves within the time-bar exception in Section 9545(b)(1)(iii).” 

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016). Hence, Miller

and Montgomery are inapplicable to Appellant. Having discerned no error of 

law, we affirm the order below. See Medina, 209 A.3d at 996.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/6/20