J-S24020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MIGUEL A. GARCIA,

Appellant No. 2600 EDA 2014

Appeal from the PCRA Order entered September 5, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0502041-2001

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 13, 2015

Miguel A. Garcia (“Appellant”) appeals from the order denying his 

second petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. Appellant has also filed an 

application to stay his appeal. For the reasons discussed below, we deny 

Appellant’s application to stay, and affirm the PCRA court’s order denying 

relief.

The pertinent facts have been summarized as follows:

Appellant, his co-defendant Antonio Lambert and Anthony 

Cheatam were in Appellant’s car all afternoon on the date 

in question. Appellant and Cheatam smoked marijuana. 

Lambert told Appellant he wanted to get high and he 

directed Appellant to drive to an area where they 

purchased some Xanax pills, which they subsequently 

ingested. They stopped at a gas station and got gas. 

Upon leaving the gas station, Lambert told Appellant to 

pull over. Both Appellant and Lambert exited the car and 

attempted to steal the purse of a woman pushing a 
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shopping cart. When the woman resisted, Lambert shot 

her, fatally wounding her. Both men returned to the car. 

Lambert, still holding the gun, told Appellant to drive 

away. Cheatam insisted on being let out of the car and he 

was. Appellant and Lambert remained together the rest of 

the evening. Early the next morning, still in Appellant’s 

car, they were pulled over for a traffic violation. Appellant 

drove away before the police officer exited his car and a 

pursuit ensued. Appellant’s car crashed; the occupants 

exited and fled on foot. Appellant, Lambert, and a third 

companion were apprehended; Appellant discarded the 

murder weapon during the foot chase.

Commonwealth v. Garcia, 847 A.2d 67, 70 (Pa. Super. 2004) (footnote 

omitted).

The PCRA court summarized the protracted procedural history that 

followed Appellant’s arrest:

On June 10, 2002, following a jury trial before this 

[c]ourt, [Appellant] was found guilty of murder of the 

second degree, robbery, and criminal conspiracy. Also on 

June 10, 2002, [Appellant] was sentenced to a term of life 

imprisonment on the murder conviction, with the robbery 

bill merging, and a concurrent sentence of five (5) to ten 

(10) years of imprisonment for conspiracy. At trial, 

[Appellant] was represented by Attorney A. Charles 

Peruto, Jr.[]

[Appellant] filed a timely notice of appeal, and on March 

11, 2004, [Appellant’s] judgment of sentence was 

affirmed. [Garcia, supra.] [Appellant] then sought 

allowance of appeal. On September 17, 2004, the 

Pennsylvania Supreme granted allowance of appeal as to 

one issue. During the direct appeal proceedings, 

[Appellant] was represented by Mitchell S. Strutin, Esquire. 

On December 27, 2005, the Supreme Court affirmed the 

judgment of sentence. [Commonwealth v. Garcia, 888 

A.2d 633 (Pa. 2005).] [Appellant] did not seek certiorari.

On September 18, 2006, [Appellant] filed a pro se 

[PCRA petition]. On March 18, 2008, Daniel Rendine, 
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Esquire, who was appointed to represent [Appellant], filed 

an amended petition on [Appellant’s] behalf. On July 3, 

2008, the Commonwealth filed a Motion to Dismiss 

[Appellant’s] amended petition. On July 17, 2008, this 

court granted the Commonwealth’s Motion to Dismiss. On 

July 23, 2008, this court sent a notice of intent to dismiss 

pursuant to Pennsylvania Rule of Criminal Procedure 907.

On August 21, 2008, [Appellant] filed a motion to 

proceed pro se. On September 22, 2008, following a 

Grazier hearing, this court granted [Appellant’s] request 

to proceed pro se and directed him to file a supplemental 

pro se petition. Attorney David Rudenstein was appointed 

by this court as backup counsel. On March 4, 2009, 

[Appellant] filed pro se an Amended [PCRA Petition] with 

Attached Memorandum of Law. On May 7, 2009, 

[Appellant] filed a supplement to his PCRA petition. On 

June 10, 2009, this court issued a second notice of its 

intent to dismiss pursuant to Pennsylvania Rule of Criminal 

Procedure 907. On July 8, 2009, this [c]ourt denied 

[Appellant’s] PCRA petition.

[Appellant] appealed the denial of PCRA relief. On 

December 15, 2010, the Superior Court affirmed. 

[Commonwealth v. Garcia, 23 A.3d 582 (Pa. Super. 

2010).] On September 26, 2011, allocatur was denied. 

[Commonwealth v. Garcia, 29 A.3d 795 (Pa. 2011).]

[Appellant] is seeking relief for a second time. On or 

about July 6, 2012, [Appellant], represented by Daniel 

Silverman, Esquire, filed his second [PCRA petition] and/or 

Motion for Re-Sentencing under the authority of Miller v. 

Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) 

(holding that a mandatory sentence of life imprisonment 

without parole for juvenile offenders is unconstitutional).

On August 14, 2012, [Appellant] filed a supplemental 

petition alleging that under Miller, his conviction is 

unconstitutional “as applied to children like him who had 

no homicidal malice and neither killed nor intend to kill the 

victim of a robbery. . . .” Supplemental [PCRA Petition, 

8/14/12, at 1]. [Appellant was 171⁄2 years old at the time 

the crime was committed.] He argued that his conviction, 

therefore, must be vacated.
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On August 24, 2012, [Appellant] filed a Second 

Supplemental [PCRA Petition] and/or Second Supplemental 

Motion for Re-sentencing. On September 4, 2012, 

[Appellant] filed a Memorandum of Law in Support of 

[PCRA] Relief.

On September 18, 2013, the Commonwealth asked this 

court to permit the Commonwealth to refrain from 

responding to [Appellant’s] pleadings until the 

Pennsylvania Supreme Court decides Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013) cert. denied, 134 

S.Ct. 2724 (U.S. 2014) (considering whether Miller 

applies retroactively to juvenile offenders sentenced to life 

imprisonment without the possibility of parole).

On December 5, 2013, [Appellant] filed a Motion for 

Leave to Amend Petition for Habeas Corpus Relief under 

Article [1], Section 14 of the Pennsylvania Constitution and 

for Post-Conviction Relief under the [PCRA]. Also on 

December 5, 2013, [Appellant] filed his Third 

Supplemental [PCRA Petition] and/or Amended Petition for 

Habeas Corpus Relief under Article [1], Section 14 of the 

Pennsylvania Constitution.

On June 26, 2014, the Commonwealth filed a Motion to 

Dismiss [Appellant’s] Second PCRA Petition. On July 1, 

2014, [Appellant] filed a Reply to the Commonwealth’s 

Motion to Dismiss.

After conducting a review of the record, this court 

dismissed [Appellant’s] PCRA petition on September 5, 

2014.

PCRA Court Opinion, 10/31/14, at 1-4 (footnotes omitted). This timely 

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

Appellant raises the following issues:

1. Should this Court stay these proceedings pending the 

United States Supreme Court’s decision in Toca v. 

Louisiana?

2. Did the PCRA court err in dismissing [Appellant’s] PCRA 

petition in which he alleged that under the authority of 
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Miller v. Alabama, 132 S.Ct. 2455 (2012) and the 

Pennsylvania Constitution his sentence of mandatory life 

imprisonment is unconstitutional since he was a child at 

the time he participated as the non-shooting accomplice in 

a robbery in which his adult co-defendant killed the victim?

(a) Did the PCRA court err in refusing to apply Miller

retroactively on the basis that the United States Supreme 

Court has already applied Miller retroactively?

(b) Did the PCRA court err in refusing to apply Miller 

retroactively on the basis that Miller announced a new 

watershed rule of substantive law?

(c) Did the PCRA court err in refusing to apply Miller 

retroactively on the broader principles of retroactivity 

based in Pennsylvania law as suggested by the majority 

and concurring opinions in Cunningham itself?

[3]. Did the PCRA court err in failing to find under the 

authority of Graham v. Florida and its progeny that 

applying the felony murder rule is unconstitutional as 

applied to children like him who had no homicidal malice 

and neither killed nor intended to kill the robbery victim?

Appellant’s Brief at 3-4 (footnote omitted).1

Our standard of review regarding an order dismissing a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Halley, 

870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). 

____________________________________________

1

In the omitted footnote, Appellant asserted, “All claims raised in this 

appeal are based on both the United States Constitution and the 

Pennsylvania Constitution.” Appellant’s Brief at 3, n.1.
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Moreover, a PCRA court may decline to hold a hearing on the petition if the 

PCRA court determines that the petitioner’s claim is patently frivolous and is 

without a trace of support either in the record or from other evidence. 

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

We address Appellant’s first issue, the subject of which Appellant has 

also raised in a separately filed motion. According to Appellant:

This Court should stay these proceedings until the 

United States Supreme Court’s decision in Toca v. 

Louisiana, [135 S.Ct. 781 (2014),] expected no later than 

June 2015. If the Court in Toca rules that Miller v. 

Alabama is retroactive, [Appellant] will be entitled to a 

resentencing hearing. This hearing would need to take 

place before the issues in this appeal are addressed and 

would moot most if not all of the present claims.

Appellant’s Brief at 13.

In Toca, supra, the United States Supreme Court issued the following 

order on December 12, 2014:

Motion of petitioner for leave to proceed in forma pauperis 

granted. Petition for writ of certiorari to the Supreme 

Court of Louisiana granted limited to the following 

questions: 1) Does the rule announced in Miller v. 

Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d 

407 (2012), apply retroactively to this case? 2) Is a 

federal question raised by a claim that a state collateral 

review court erroneously failed to find a Teague exception 

[to the general principles of retroactivity]?

Toca, 135 S.Ct. at 781-82. On February 3, 2015, however, the United 

States Supreme Court ruled: “The writ of certiorari was dismissed today 

pursuant to Rule 46.1 of the Rules of this Court.” Toca, 135 S.Ct. 1197 
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(2015). Thus, as Toca is no longer pending, Appellant’s first issue is 

meritless, and we deny his separate motion to stay his appeal.2

In his second issue and its subparts, Appellant challenges the PCRA 

court’s determination that his second PCRA petition was untimely. The 

timeliness of a post-conviction petition is jurisdictional. Commonwealth v. 

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a 

PCRA petition is untimely, neither an appellate court nor the PCRA court has 

jurisdiction over the petition. Id. “Without jurisdiction, we simply do not 

have the legal authority to address the substantive claims” raised in an 

untimely petition. Id.

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 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

____________________________________________

2 We recognize that in Montgomery v. Louisiana, 2015 U.S. LEXIS 1942, 

the high court granted the petition for writ of certiorari to address the 

following question: “Do we have jurisdiction to decide whether the Supreme 

Court of Louisiana correctly refused to give retroactive effect in this case to 

our decision in Miller v. Alabama?” Id. (citation omitted).
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constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

Because Appellant did not file a petition for writ of certiorari with the 

United States Supreme Court following our Supreme Court’s denial of his 

allocatur petition, for PCRA purposes, Appellant’s judgment of sentence 

became final ninety (90) days thereafter, on March 27, 2006. 42 Pa.C.S.A. 

§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, in order to be timely, Appellant had 

to file his PCRA petition by March 27, 2007. Appellant filed the instant PCRA 

petition over five years later. As a result, his PCRA petition is patently 

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies. See Commonwealth v. Beasley, 

741 A.2d 1258, 1261 (Pa. 1999).

Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. Appellant contends that his PCRA falls under 

the exception of subsection 9545(b)(1)(iii) because the United States 
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Supreme Court recognized a new constitutional right in Miller v. Alabama, 

132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory 

sentences of life without parole “for those under the age of 18 at the time of 

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and 

unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the 

Miller decision should be applied retroactively to his life sentence. As 

recognized by the PCRA court, Appellant’s claim fails.

Our Supreme Court has determined that the Miller decision should not 

be applied retroactively. See generally, Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant cannot avoid the 

PCRA’s time bar pursuant to Section 9545(b)(iii). As an intermediate 

appellate court, we are bound by the Cunningham decision. To the extent 

Appellant argues that Cunningham was wrongly decided, it is not our 

province to address this claim further.3 

With regard to Appellant’s argument seeking habeas corpus relief, we 

agree with the following observations of the PCRA court:

____________________________________________

3 Appellant also cites to the federal court’s decision in Songster v. Beard, 

35 F.Supp.3d 657 (E.D.Pa. 2014), in which the district court held that Miller 

applied retroactively to cases on collateral review. He also suggests that we 

stay consideration of his appeal until the Third Circuit addresses the 

decision. Appellant’s Brief at 19. Because federal decisions that construe 

Pennsylvania law are not binding precedent, Commonwealth v. Bennett, 

57 A.3d 1185, 1203 (Pa. 2012), we decline to do so.
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Relying on Chief Justice Castille’s concurring opinion in 

Cunningham, [Appellant] argues that to the extent his 

federal or state constitutional claims are not cognizable 

under the PCRA, he has a remedy under Pennsylvania’s 

habeas corpus statute, 42 Pa.C.S. §6501 et seq. 

[Appellant’s] claim is meritless and must fail.

In his [concurring] opinion in Cunningham, Chief

Justice Castille offered several “thoughts upon the 

prospects of other methods of remedying the seeming 

inequity arising in the post-Miller landscape.” 

Cunningham, 81 A.3d at 14. He reflected, inter alia, on a 

possibility of the post-Miller inequity being resolved 

through a petition under Pennsylvania’s habeas corpus 

statute. Id. at 11-14. 

As a preliminary matter, despite [Appellant’s] claim that 

he is entitled to habeas corpus sentencing relief, Chief 

Justice Castille’s concurring statement does not represent 

the view of the majority of the court and is, therefore, not 

precedential. [Moreover, Chief Justice Castille indicated in 

his concurrence that he joined “the well-reasoned Majority 

Opinion in its entirety.” Id. at 11 (emphasis added).]

Furthermore, pursuant to Pennsylvania law, the PCRA 

subsumes the remedy of habeas corpus unless the claim 

does not fall within the ambit of the PCRA statute. 

[Appellant] cannot avoid the PCRA time-bar by titling his 

petition or motion as a writ of habeas corpus. 

Here, [Appellant’s] claims involving alleged violations of 

his constitutional rights are cognizable under the PCRA. 

[Appellant] must, therefore, comply with the timeliness 

requirements of the PCRA. [Appellant] cannot avoid the 

PCRA timeliness requirements by claiming that he has a 

remedy under the Pennsylvania habeas corpus statute. 

[Appellant’s] habeas corpus petition should, therefore, be 

dismissed as an untimely PCRA claim.

PCRA Court Opinion, 10/31/14, at 13-14 (footnote and citations omitted).

In his final issue, Appellant asserts that the PCRA court erred in 

“completely failing to address [his] claim that based on Miller his conviction 

for second degree murder under the felony murder rule is unconstitutional 
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as applied to children like him who had no homicidal malice and neither 

killed nor intended to kill the victim of the robbery.” Appellant’s Brief at 14. 

This claim fails, because even if Miller established such a “new 

constitutional right,” as we stated above, we are bound by our Supreme 

Court’s determination that Miller is not retroactive. Cunningham, supra.

In sum, Appellant’s PCRA petition is facially untimely, and he has failed 

to meet his burden of proof with regard to any exception to the timeliness 

requirements of the PCRA. We therefore affirm the PCRA court’s denial of 

Appellant’s petition for post-conviction relief.

Application to stay denied. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015
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