J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STAN ROSENTHAL

Appellant :

:

:

:

:

:

:

:

: 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 0 6 , 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 h istory 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 insis ted 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 exch ange for the Commonwealth’s promise not to seek the death penalty.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541

– 9546.J

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- 2

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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. Appella nt 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 act ed 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 t hat 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. Th e 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 petit ion 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, arguin g 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 Unit ed 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 wri t 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,J

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- 3

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1996, the PCRA court denied Appellant’s first PCRA petition. Id. at 1. On

October 2 3, 1998, this Court affirmed that denial of PCRA relief. Id.

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

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 f ulfills 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 recog nized 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 e ntered 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. O n March 25, 2019,

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

_________________ __________ ______ ____ _______

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 th e time limitations for filing the petition set forth in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).J

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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 Post

Conviction Relief Act Petition as untimely which [A] ppellant filed within 60

- days of MONTGO MERY V. LOUISIANA 136 S.Ct 718 2018 c hallenging 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 impriso n ment and 18 Pa C.S.A. § 1102(b)

- sentence for second degree murder which authorizes life imprisonment?

(2)

Whether where the U nited States Supreme Court decision invalidating mandatory minimum and maximum sentencing statutes and other decisions inval idating 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. §95 45(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

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

_________________ __________ ______ ____ _______

3 Appellant filed his statement of errors complained of on appeal on July 29, 2019.J

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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