J-S21038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID MOUA,

Appellant No. 2844 EDA 2014

Appeal from the PCRA Order September 5, 2014

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0000565-2000

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 09, 2015

Appellant, David Moua, appeals pro se from the denial of his petition 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. 

He argues that Miller v. Alabama1should apply retroactively to his 

mandatory life sentence for murder of the first degree. However, Appellant 

has failed to plead and prove a statutory exception to the PCRA time bar. 

Accordingly, we affirm.

Appellant’s conviction arose out of his participation, with his brother 

and another co-conspirator, Loi Nghiem, in the robbery and murder of his 

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* Retired Senior Judge assigned to the Superior Court.

1 See Miller v. Alabama, and Jackson v. Hobbs, 132 S. Ct. 2455 (2012). 

The Miller Court concluded that mandatory life-without-parole sentences for 

juveniles violate the Eighth Amendment. See id. at 2464.
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Upper Darby next door neighbor, Constantine Polites, a college student.2 

(See Trial Court Opinion, filed 1/21/03, at 1). The robbery and murder took 

place on April 4, 2000. Appellant, born on July 19, 1983, was sixteen at the 

time of the crime. 

Appellant’s father accompanied him to the police station and remained 

with him during the questioning. The police gave Appellant Miranda

warnings.3 He gave an inculpatory statement implicating himself in the 

robbery. On May 23, 2002, a jury convicted Appellant of murder of the first 

degree, robbery, burglary, unlawful restraint, and theft by unlawful taking. 

On July 15, 2002, the trial court sentenced him, inter alia, to life 

imprisonment without parole. (See id. at 5). 

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2 Notably, Mr. Polites was bound at the wrists and ankles with electrical 

cords, duct tape, and a black plastic wire tie. When found by his mother, he 

had been stabbed over forty times, and shot three times point blank in the 

head. The record before us tends to show that the actual perpetrator of the 

stabbings and shootings was the third co-conspirator, Loi Nghiem. 

Appellant’s argument minimizes his involvement in the murder, but he does 

not dispute his involvement in the conspiracy to rob, nor his involvement in 

tying up the victim. In any event, Appellant bases his appeal on the 

retroactive application of Miller, not a claim of innocence of the crimes for 

which he was convicted. 

Appellant had told substantially different versions of his story to the 

police, including an alibi which placed him in Philadelphia all day, playing 

hooky from school. When brought in for further questioning, he attempted 

to get rid of a black plastic wire tie in his jacket by passing it off to his 

father. The police noticed, and retrieved the tie. 

3 See Miranda v. Arizona, 384 U.S. 436 (1966). 
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On July 30, 2004, this Court affirmed the judgment of sentence. (See 

Commonwealth v. Moua, 859 A.2d 833 (Pa. Super. 2004)). Our Supreme 

Court denied allowance of appeal, on February 24, 2005. (See 

Commonwealth v. Moua, 868 A.2d 1199 (Pa. 2005)). 

Appellant’s first PCRA petition, filed February 21, 2006, after 

amendment, was eventually denied, on August 17, 2007. This Court 

affirmed the denial on September 3, 2008. (See Commonwealth v. Moua, 

963 A.2d 569 (Pa. Super. 2008)). Our Supreme Court denied allowance of 

appeal, on January 12, 2009.4 (See Commonwealth v. Moua, 963 A.2d 

469 (Pa. 2009)). 

Appellant filed a second pro se PCRA petition on March 3, 2009. He 

filed another pro se PCRA petition on July 2, 2010.5 The PCRA court, which 

had dismissed the subsequent petition without prejudice because the 

previous petition was still on appeal, reconsidered the subsequent petition 

after the previous decision was affirmed, and filed notice of its intention to 

dismiss. (See Orders, 11/18/11). Appellant responded.

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4

For clarity, we note that the order denying allowance of appeal, dated 

January 12, 2009, was filed on February 5, 2009.

5

Independently, Appellant’s petition for a federal writ of habeas corpus was 

denied in an unpublished decision. See Moua v. Britten, 2010 WL 962923 

(E.D. Pa. 2010).
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On January 18, 2013, the PCRA court appointed counsel for Appellant 

and directed him to file an amended petition or a “no merit” letter.6 On July 

11, 2013, the PCRA court, at the request of appointed counsel, stayed 

proceedings in this case until further order, pending our Supreme Court’s 

decision in Commonwealth v. Cunningham. Our Supreme Court decided 

Cunningham on October 30, 2013. See Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013). 

After our Supreme Court’s decision in Cunningham, the PCRA court 

granted counsel’s petition to withdraw. (See Order, 7/08/14). In a 

separate order on the same day, the court filed notice of its intent to 

dismiss, and Appellant responded. The PCRA court denied Appellant’s 

petition on September 5, 2014. Appellant timely appealed, pro se.

7

 (See

Notice of Appeal, 10/01/14). The PCRA court filed an opinion on November 

14, 2014. 

Appellant presents one question for our review.

1. Did the [PCRA] [c]ourt err in denying [A]ppellant’s 

P.C.R.A. petition since pursuant to the 6/25/12 United States 

Supreme Court decision in Miller V. Alabama, [A]ppellant, who 

was a juvenile at the time of the commission of the instant 

crime, received a[n] unconstitutional mandatory sentence of 

[l]ife [imprisonment] without the possibility of parole for [f]irst-

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6 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

7 The PCRA court did not order Appellant to file a statement of errors. See

Pa.R.A.P. 1925(b). 
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[d]egree [m]urder and therefore his sentence must be vacated 

and he be re-sentence[d] due to violation of the U.S. 

Constitutional Amendment and Pennsylvania Constitution[?]

(Appellant’s Brief, at 2).

Appellant argues that he is entitled to an evidentiary hearing, and resentencing, pursuant to Miller and its companion case, Jackson v. Hobbs, 

supra. (See Appellant’s Brief, at 6-20). We disagree. 

Our standard and scope of review for the denial of PCRA relief are 

well-settled.

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error. This Court may affirm a PCRA court's decision on any 

grounds if the record supports it. We grant great deference to 

the factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Further, where 

the petitioner raises questions of law, our standard of review is 

de novo and our scope of review is plenary.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation 

omitted). The PCRA provides, in pertinent part, that:

(1) Any petition under this [PCRA] subchapter, including a 

second or subsequent petition, shall be filed within one year of 

the date the judgment becomes final, unless the petition alleges 

and the petitioner proves that: 

(i) the failure to raise the claim previously was the 

result of interference by government officials with the 

presentation of the claim in violation of the Constitution or 

laws of this Commonwealth or the Constitution or laws of 

the United States; 
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(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or 

(iii) the right asserted 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 that court to 

apply retroactively. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the claim 

could have been presented. 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), (2). “The PCRA’s time restrictions are 

jurisdictional in nature. Thus, if a PCRA petition is untimely, neither this 

Court nor the [PCRA] court has jurisdiction over the petition. Without 

jurisdiction, we simply do not have the legal authority to address the 

substantive claims.” Commonwealth v. Lewis, 63 A.3d 1274, 1280-

81 (Pa. Super. 2013) (citation omitted). 

Petitioners must plead and prove the applicability of one of 

the three exceptions to the PCRA timing requirements. If the 

petition is determined to be untimely, and no exception has been 

pled and proven, the petition must be dismissed without a 

hearing because Pennsylvania courts are without jurisdiction to 

consider the merits of the petition. 

* * *

The elements necessary to establish a § 9545(b)(1)(iii) 

exception are now well established in the courts of this 

Commonwealth:

Subsection (iii) of Section 9545 [(b)(1)] has two 

requirements. First, it provides that the right asserted is a 

constitutional right that was recognized by the Supreme 

Court of the United States or this court after the time 

provided in this section. Second, it provides that the right 
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“has been held” by “that court” to apply retroactively. 

Thus, a petitioner must prove that there is a “new” 

constitutional right and that the right “has been held” by 

that court to apply retroactively. The language “has been 

held” is in the past tense. These words mean that the 

action has already occurred, i.e., “that court” has already 

held the new constitutional right to be retroactive to cases 

on collateral review. By employing the past tense in 

writing this provision, the legislature clearly intended that 

the right was already recognized at the time the petition 

was filed.

Commonwealth v. Gandy, 38 A.3d 899, 903 (Pa. Super. 2012), appeal 

denied, 49 A.3d 442 (Pa. 2012) (case citations omitted). 

“It is the appellant’s burden to allege and prove that one of the 

timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d 

1091, 1094 (Pa. 2010) (citations and other punctuation omitted). Similarly, 

“[t]he PCRA squarely places upon the petitioner the burden of proving an 

untimely petition fits within one of the three exceptions.” Lewis, supra at 

1279 (citing Albrecht). 

Here, as noted by the PCRA court, Appellant’s PCRA petition is patently 

untimely.8 (See PCRA Court Opinion, 11/14/14, at 2). Importantly, 

Appellant does not satisfy the burden to allege and prove a statutory 

exception by mere citation to United States Supreme Court cases in support 

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8 Appellant’s judgment of sentence became final on May 25, 2005. 

Therefore, he had until May 25, 2006 to file a timely PCRA petition. (See

PCRA Court Opinion, 11/13/14, at 2 n.5). 
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of his substantive argument on appeal. See Lewis, supra at 1279. He 

must first establish an exception to the statutory time bar. 

Appellant’s PCRA petition does not plead or prove an exception to the 

statutory time-bar. Therefore, he failed to establish that any exceptions 

apply. Accordingly, neither the PCRA court nor this Court has jurisdiction to 

address the substantive claims raised and we have no basis to overturn the 

PCRA court’s decision in this matter. See id. 

Our reasoning differs from that of the PCRA court.9 However, we may 

affirm the PCRA court’s order on any basis. See Reed, supra at 140. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2015

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9 Nevertheless, the PCRA court’s legal reasoning, that under Cunningham

Miller does not apply retroactively, remains sound. (See PCRA Ct. Op., at 

2); Cunningham, supra at 11. See also Reed, supra at 144 (concluding 

there is no reasonable doubt about our Supreme Court’s conclusion in 

Cunningham that Miller is not retroactive); Commonwealth v. Seskey, 

86 A.3d 237, 243 (Pa. Super. 2014), appeal denied, 101 A.3d 103 (Pa. 

2014) (“[I]n Cunningham, our Supreme Court held that the constitutional 

right announced by the United States Supreme Court in Miller does not 

apply retroactively.”). Even if we had jurisdiction to review the substance of 

Appellant’s claim, his issue would not merit relief.