J-S21004-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREDDY MCCUTCHEN,

Appellant No. 3379 EDA 2014

Appeal from the PCRA Order October 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0701591-1971

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

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Freddy McCutchen appeals from the order entered October 29, 2014, 

denying his serial post-conviction relief petition as untimely. We affirm.

This case has been the subject of four prior published decisions. In 

1973, a jury initially found Appellant guilty of killing a six-year old boy after 

sodomizing the victim. The facts of the brutal slaying are unnecessary to 

our disposition and are set forth in our Supreme Court’s 1982 decision. 

Commonwealth v. McCutchen, 454 A.2d 547 (Pa. 1982).

At the time of the crime, Appellant was fifteen. His initial conviction 

for first-degree murder was reversed by the Pennsylvania Supreme Court 

because he had confessed to the crime without being afforded an 

opportunity to speak with his mother or another interested adult. 

Commonwealth v. McCutchen, 343 A.2d 669 (Pa. 1975). Concomitantly, 
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the Pennsylvania Superior Court reversed his sodomy conviction for the 

same reason. Commonwealth v. McCutchen, 369 A.2d 291 (Pa.Super. 

1976).1 

Thereafter, the Commonwealth retried Appellant for the murder and 

nolle prossed the sodomy count. A jury again convicted Appellant of firstdegree murder on May 5, 1976. This Court reversed on the basis that two 

color slides of the six-year-old victim’s body, which were shown to the jury, 

were too gruesome and inflammatory. Commonwealth v. McCutchen, 

417 A.2d 1260 (Pa.Super. 1979). However, the Pennsylvania Supreme 

Court reversed that decision and remanded to the Superior Court for 

consideration of additional issues not addressed. McCutchen, 454 A.2d 

547. This Court then affirmed. Commonwealth v. McCutchen, 488 A.2d 

1165 (Pa.Super. 1984) (unpublished memorandum). The Supreme Court 

denied allocatur on April 10, 1985.

Appellant filed a post-conviction relief petition under the then-existing 

Post-Conviction Hearing Act on May 29, 1985. The court denied that petition 

and Appellant failed to appeal. Appellant subsequently filed post-conviction 

petitions under the Post-Conviction Relief Act (“PCRA”) in 1989, 1990, and 

____________________________________________

1 Trial counsel did not simultaneously appeal from the judgments of 

sentence for the sodomy and murder charges. Appellant’s direct appeal 

rights for the sodomy charge were reinstated.
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2005. The PCRA court denied those petitions.2 Appellant filed the instant 

petition on July 13, 2012, and filed supplemental petitions on August 24, 

2012 and October 7, 2013. The PCRA court issued a Pa.R.Crim.P. 907 notice 

of intent to dismiss on September 22, 2014. Appellant filed a response, and 

the PCRA court entered its final order dismissing the petition on October 29, 

2014. This timely appeal ensued. 

Appellant raises eleven issues, only one of which is relevant to our 

disposition.3 That issue is whether Miller v. Alabama, 132 S.Ct. 2455 

____________________________________________

2 This Court affirmed the dismissal of the 1990 PCRA matter. 

Commonwealth v. McCutchen, 599 A.2d 702 (Pa.Super. 1991) 

(unpublished memorandum). Our Supreme Court denied allowance of 

appeal on September 15, 1992. Commonwealth v. McCutchen, 614 A.2d 

1140 (Pa. 1991). 

3 The issues Appellant levels in his brief are set forth as follows:

A. Whether the unconstitutionality of 18 P[.]S. § 4701 creates an 

permissible presumption holding prosecution under a charge of murder 

of the first degree dated October 1972 and reprosecution date AprilMay 1976 i[n]valid and in violation of the double jeopardy clauses?

B. Whether the repeal of the Act of June 24, 1939 P.L. 872, § 701 as 

amended 18 P.S. § 4701 and the inferences therein creates an 

impermissible mandatory presumption holding prosecution at Com v. 

McCutchen July term 1971 No. 159-murder barred?

C. Whether the enumerated felonies at 18 P.S. § 4701 that constituted 

murder of the first degree which were re-enacted at Act of December 

6, 1972 P.L.__ No. 334, § 1 effective June 6, 1973 (notwithstanding 

deviate sexual intercourse by force or by threat of force) where by 

amendment March 26, 1974 P.L. 213, No. 46, § 1 the provisions of 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

first degree murder were split to create provisions at 18 Pa.C.S.A. § 

2502(b) a new felony-murder rule repealed the prior provisions at 18 

C.P.S.A. [sic] § 2502(a) and therefore were inapplicable at the 1976 

reprosecution? 

D. Whether the retrial held on a first degree murder charge where the 

related conviction for sodomy had not been reversed, vacated nor set 

aside require the reversal and dismissal of the murder conviction on 

double jeopardy grounds?

E. Whether the Crimes Code and caselaw under 18 P.S. § 4701 and 18 

Pa.C.S.A. § 2502(b) create an impermissible mandatory presumption 

that in a felony-murder prosecution where a defendant is convicted of 

first degree murder, that the trial jury determined that the defendant 

had a specific intent to kill?

F. Whether the failure of Judge James T. McDermott at Com v. 

McCutchen July term 1971 No. 159-murder, 160-sodomy to recusal 

[sic] himself at an appeal filed by the Commonwealth dated 1982 

require the dismissal of the prosecution on former jeopardy? 

G. Whether the State Supreme Court[’]s action of relinquishing 

jurisdiction of the direct appeal filed 1977 (relinquished to a special 

panel of the Superior Court) bar the State Supreme Court from 

vacating a reversal and new trial order based on an presumption of 

vindictiveness by the Court, and based on the Commonwealth[’]s 

procedural default where the Commonwealth failed to seek rehearing 

in the PA Superior Court?

H. Whether Com v. McCutchen[,] 463 Pa[.] 90, 343 A.2d 669 (1975) bar 

a reprosecution and reconviction on former jeopardy grounds where 

the 15 year old Appellant and the case should have been transfered 

[sic] back to the juvenile court[,] the court of first instance?

(Footnote Continued Next Page)
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(2012), and its companion case of Jackson v. Hobbs, 132 S.Ct. 2455 

(2012), announced a new constitutional rule that applies retroactively. 

Whether Miller applies retroactively implicates the timeliness of Appellant’s 

petition and, thus, our jurisdiction. Commonwealth v. Taylor, 67 A.3d 

1245, 1248 (Pa. 2013) (time-bar is jurisdictional). 

(Footnote Continued) _______________________

I. Whether the second prosecution at Com v. McCutchen July term 1971 

No. 159-murder dated April-May 1976 was barred where the 

Commonwealth proceed[ed] to trial on bill of indictment no. 159-

murder obtained under the Act of June 24, 1939[,] P.L. - - - - No. 334, 

§ 1 effective June 6, 1973?

J. Whether Jackson v. Hobbs No. 10-9647 (2012) U.S. Supreme Court 

where the Petitioner was on collateral review announced a new 

constitutional rule of criminal procedure at Miller v. Alabama No. 10-

9646 (2012) U.S. Supreme Court?

K. Whether the failure of court appointed attorney’s (prior to, during, and 

on both direct appeals following both trials held 1972 and 1976) to 

challenge alleged indictments 159-murder and 160-sodomy, and 

second attorney[’]s failure to challenge 9b) second prosecution for first 

degree murder in violation of State Supreme Court[’]s 1975 reversal, 

and (c) where related sodomy conviction had not been reversed, 

vacated and set aside prior to second trial, (d) and both attorney’s 

failure to seek the Appellant’s discharge under the constitutionality of 

18 P.S. § 4701 following [C]om v. [B[radely[,] 449 P[a.] 19, 295 A.2d 

842 (1972) and the repeal of the Act of June 24, 1939 P.L. 872, § 701 

as amended 18 P.S. § 4701 prior to both trials and on both direct 

appeals, violated the Appellant’s guaranteed right to effective 

assistance of counsel as of right on direct appeal?

Appellant’s brief at 8-9. 
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In order for a collateral petition to be timely under the PCRA, it must 

be filed within one year of the finality of the petitioner’s judgment of 

sentence. 42 Pa.C.S. § 9545(b)(1). Where a defendant was convicted 

before the effective date of the 1995 PCRA time-bar amendment, a 

petitioner could timely file a petition if it was his first and was filed by 

January 16, 1997. Commonwealth v. Sneed, 45 A.3d 1096, 1102 n.5 (Pa. 

2012); Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super. 1998) (en 

banc). Here, Appellant could only file a timely petition by asserting one of 

three timeliness exceptions. Those exceptions include interference by 

government officials, newly-discovered facts that were unknown to the 

petitioner and which could not have been ascertained with due diligence, or 

a new constitutional right held to apply retroactively. 42 Pa.C.S. §§ 

9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-bar must be 

filed within sixty days of the date it could have been first presented. 42 

Pa.C.S. § 9545(b)(2). 

Appellant’s claim implicates the new constitutional rule exception. Our 

Supreme Court, however, has ruled that Miller and its companion case 

Jackson do not apply retroactively. Commonwealth v. Cunningham, 81 

A.3d 1 (Pa. 2013). Accordingly, Appellant’s position fails. As none of 

Appellant’s remaining arguments pertains to a timeliness exception, he has 

failed to demonstrate a timeliness exception. 
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015