J-S44016-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DONALD ZOLLER, JR. 

 Appellant No. 1676 WDA 2014 

Appeal from the PCRA Order Dated October 3, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No: CP-02-CR-0004839-1986 

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, JJ. 

MEMORANDUM BY STABILE, J.: FILED JUNE 3, 2016 

 This case returns to this Court following a remand from our Supreme 

Court. On February 17, 2016, the Court granted the petition for allowance 

of appeal filed by Appellant, Donald Zoller, Jr., vacated our previous order 

affirming the dismissal of his third petition for relief filed pursuant to the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and 

remanded the case to us for further proceedings consistent with 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Upon review, we 

reverse and remand. 

 Briefly, as a 14 year-old, Appellant was charged as an adult for three 

counts of criminal homicide for the stabbing deaths of his three neighbors. 

Appellant was convicted and sentenced to three concurrent mandatory 

sentences of life imprisonment without the possibility of parole. After 
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exhausting his direct appeal rights and filing two PCRA petitions, on July 31, 

2012, 36 days after the Supreme Court of the United States issued Miller v. 

Alabama, 132 S. Ct. 2455 (2012),1 Appellant filed a third PCRA petition, 

which is the subject of this appeal. Appellant asserted that Miller applied to 

his case on collateral review. Relying on Commonwealth v. Cunningham, 

81 A.3d 1 (Pa. 2013),2cert. denied sub nom. Cunningham v. 

Pennsylvania, 134 S. St. 2724 (2014), the PCRA court dismissed 

Appellant’s third PCRA petition. On August 21, 2015, we affirmed the PCRA 

court’s order. Commonwealth v. Zoller, 131 A.3d 101 (Pa. Super. 2015) 

(unpublished memorandum), vacated, __ A.3d __, 2016 WL 634102 (Pa. 

2016). Appellant filed a petition for allowance of appeal with our Supreme 

Court on September 17, 2015. While Appellant’s petition was pending, on 

January 25, 2016, the United Stated Supreme Court issued its decision in 

Montgomery, holding that Miller’s prohibition against mandatory life 

sentences without the possibility of parole for juvenile offenders was a new 

____________________________________________ 

1

 The Court in Miller held that “[m]andatory 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.’” Miller, 132 

S. Ct. at 2460 (emphasis added). 

2

 The Supreme Court held that Miller did not apply retroactively to cases on 

collateral appeal. Cunningham, 81 A.3d at 9-10 (noting that “nothing in 

[a]ppellant’s arguments persuades us that Miller’s proscription of imposition 

of mandatory life-without-parole sentences upon offenders under the age of 

eighteen at the time their crimes were committed must be extended to those 

whose judgments of sentence were final as of the time of Miller’s 

announcement”). 
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substantive rule that, under the United States Constitution, must be 

retroactive in cases on state collateral review. Montgomery, supra at 732. 

As a result, our Supreme Court vacated our prior order and remanded this 

case to us. In so doing, the Court ordered that, “[t]o the extent necessary, 

leave is to be granted to amend the post-conviction petition to assert the 

jurisdictional provision of the Post Conviction Relief Act extending to the 

recognition of constitutional rights by the Supreme Court of the United 

States which it deems to be retroactive. See 42 Pa.C.S.A. 

§ 9545(b)(1)(iii).” Commonwealth v. Zoller, 376 WAL 2015 (Pa. filed 

February 17, 2016). Therefore, consistent with our Supreme Court’s 

direction in light of Montgomery, we reverse the PCRA court’s order 

dismissing Appellant’s third PCRA petition and remand the case to the PCRA 

court for further proceedings consistent with our Supreme Court’s order and 

this Memorandum. 

 Order reversed. Case remanded. Jurisdiction relinquished. 

 Judge Jenkins joins this memorandum. 

 Judge Lazarus files a concurring statement. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/3/2016 
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