J-S13002-15 

2015 PA Super 74

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

JEFFREY CRISTINA, 

 Appellee No. 601 WDA 2013 

Appeal from the PCRA Order Entered March 20, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): 

CP-02-CR-0001478-1976 

CP-02-CR-0002462-1976 

CP-02-CR-0002464-1976 

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. 

OPINION BY BENDER, P.J.E.: FILED APRIL 14, 2015 

 The Commonwealth appeals from the PCRA1 court’s order granting 

Jeffrey Cristina a new sentencing hearing. Because the PCRA court lacked 

jurisdiction to entertain Cristina’s untimely PCRA petition, we reverse. 

 In 1976, Cristina was convicted by a jury of second degree murder for 

the killing of Frank Slazinski during a home invasion. Cristina, a juvenile 

when the homicide occurred, was sentenced to life in prison without the 

possibility of parole (LWOP) on March 29, 1977. On October 5, 1978, our 

Supreme Court affirmed his judgment of sentence. Commonwealth v. 

Cristina, 391 A.2d 1307 (Pa. 1978). The Supreme Court of the United 

____________________________________________ 

1

 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546. 
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States subsequently denied his Petition for Writ of Certiorari on February 21, 

1979. Cristina v. Pennsylvania, 440 U.S. 925 (1979) (table). 

On March 15, 1984, Cristina filed a counseled petition under the Post 

Conviction Hearing Act (PCHA), the statutory predecessor of the PCRA.2 

Cristina’s PCHA petition was denied by order of the PCHA court on April 3, 

1985. This Court affirmed that order on May 12, 1986, and our Supreme 

Court denied Cristina’s subsequent petition for allowance of appeal on 

January 7, 1987. Commonwealth v. Cristina, 512 A.2d 1288 (Pa. Super. 

1986) (unpublished memorandum), appeal denied, 521 A.2d 931 (Pa. 1987) 

(table). 

Cristina filed his second post-conviction petition for collateral relief on 

June 16, 2010. Counsel was appointed and filed an amended PCRA petition 

on September 14, 2011. Following a hearing, Cristina’s amended petition 

was denied by order of the PCRA court dated October 28, 2011. Cristina did 

not appeal from that order. 

 Cristina filed his third post-conviction petition for collateral relief, the 

subject of the instant appeal, on July 27, 2012, 32 days after the United 

States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 

2469 (2012) (holding that “the Eighth Amendment forbids a sentencing 

scheme that mandates life in prison without possibility of parole for juvenile 

____________________________________________ 

2

 The PCHA was repealed in part, modified in part, and renamed the Post 

Conviction Relief Act, effective April 13, 1988. 
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offenders”). On August 14, 2012, current PCRA counsel was appointed. He 

filed an amended PCRA petition (hereinafter “the Petition”) on Cristina’s 

behalf on December 3, 2012, alleging that, under the rubric of Miller, 

Cristina’s LWOP sentence constituted cruel and unusual punishment under 

the 8th Amendment. By order dated March 20, 2013, the PCRA court 

granted the Petition and set a date for resentencing Cristina. The 

Commonwealth then timely filed the instant appeal, as well as a timely 

Pa.R.A.P. 1925(b) statement. Subsequently, the PCRA court issued its Rule 

1925(a) opinion on September 9, 2014. Therein, the PCRA court changed 

course, recommending that this Court reverse its March 20, 2013 order. 

PCRA Court Opinion (PCO), 9/9/14, at 2. 

 The Commonwealth now presents the following question for our 

review: 

Whether the PCRA court erred in granting [Cristina] postconviction relief in the form of resentencing where the [Petition] 

was untimely filed? 

Commonwealth’s Brief, at 4. 

This Court’s standard of review regarding an order granting or denying 

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. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 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). “However, this Court applies a de novo standard of 
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review to the PCRA court's legal conclusions.” Commonwealth v. Spotz, 

18 A.3d 244, 259 (Pa. 2011). 

We must begin by addressing the timeliness of the Petition, because 

the PCRA time limitations implicate our jurisdiction and may not be altered 

or disregarded in order to address the merits of a petition. Commonwealth 

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded to address 

the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291, 

1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to 

reach merits of an appeal from an untimely PCRA petition). Under the PCRA, 

any petition for post-conviction relief, including a second or subsequent one, 

must be filed within one year of the date the judgment of sentence becomes 

final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii) applies. That section states, in relevant part: 

(b) Time for filing petition.--

(1) Any petition under this 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; 

(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 
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(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. 

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of 

these exceptions “shall be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2). 

Here, it is undisputed that the Petition is untimely and, therefore, that 

Cristina had to avail himself of at least one of the exceptions to the 

timeliness requirements set forth in Section 9545(b)(1)(i)-(iii) in the 

Petition. There is also no dispute that Cristina has not alleged the 

applicability of either Section 9545(b)(1)(i) or (ii). Accordingly, our inquiry 

is focused on whether Cristina can rely on Section 9545(b)(1)(iii) to 

overcome the PCRA’s time limitations. 

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 [the Supreme Court of Pennsylvania] after the time provided 

in this section. Second, it provides that the right “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. 
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Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 2007) 

(quoting Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 

2002)). 

The Commonwealth argues that the United States Supreme Court’s 

decision in Miller, the case relied upon by Cristina to invoke Section 

9545(b)(1)(iii), has not been “held by that court to apply retroactively.” 42 

Pa.C.S. § 9545(b)(iii). Accordingly, the Commonwealth contends that the 

PCRA court lacked jurisdiction to entertain the Petition. Despite entering an 

order granting Cristina’s Petition, the PCRA court now agrees with the 

Commonwealth’s position in light of our Supreme Court’s decision in 

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

Cunningham v. Pennsylvania, 134 S.Ct. 2724 (2014). PCO, 9/9/14, at 2. 

In Cunningham, our Supreme Court held that, “applying settled 

principles of appellate review, nothing in [Cunningham]’s arguments 

persuades us that Miller's proscription of the imposition of mandatory lifewithout-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.” 

Cunningham, 81 A.3d at 11. Moreover, the Cunningham Court 

determined that “the Miller majority did not specifically address the 

question of whether its holding applies to judgments of sentence for 

prisoners, ... which already were final as of the time of the Miller decision.” 

Id. at 4. 
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Notably, however, the Cunningham decision addressed claims of 

Miller’s retroactivity as presented by Cunningham. As the Cunningham

Court acknowledged, 

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 

334 (1989) (plurality), delineated a general rule of nonretroactivity for new procedural, constitutional rules announced 

by the Court, ... subject to two narrow exceptions.... [T]he 

exceptions extend to “rules prohibiting a certain category of 

punishment for a class of defendants because of their status or 

offense,” and “watershed rules of criminal procedure implicating 

the fundamental fairness and accuracy of the criminal 

proceeding.” More recently, in Schriro v. Summerlin, 542 U.S. 

348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the High Court 

appears to have merged the first Teague exception with the 

principle that new substantive rules generally apply retroactively. 

Cunningham, 81 A.3d at 4-5 (internal citations omitted). 

 The Cunningham Court clearly held that “the first Teague exception 

does not apply to the Miller rule.” Id. at 10. However, as to the second 

Teague exception, the Cunningham Court stated that “[Cunningham] has 

not developed his arguments in such terms.” Id. The Court went on to 

admit that “given the high importance attached by the Miller majority to the 

new rule which it discerned, it seems possible that some Justices of the 

United States Supreme Court may find the rule to be of the watershed 

variety.” Id. Nonetheless, the Cunningham Court expressed doubt 

regarding whether a majority of the High Court would apply the second 

Teague exception to Miller. Id. Whether our Supreme Court’s prediction 

will be accurate remains to be seen; however, that prediction is obviously 
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dicta, because Cunningham had not argued the applicability of that 

exception. 

 Accordingly, while it may be convenient shorthand to state that 

Cunningham held that the rule in Miller does not apply retroactively, that 

is not completely accurate. Cunningham can only be read for the 

propositions that 1) the Miller Court did not, itself, give retroactive effect to 

the new rule it announced, and 2) Miller is not otherwise retroactive under 

the first Teague exception. Whether Miller is retroactive under the second 

Teague exception, or some other theory,3 has not yet been addressed by 

our Supreme Court. 

Nevertheless, in the wake of Cunningham, it is clear that neither the 

United States Supreme Court, nor the Pennsylvania Supreme Court, has held 

that the rule in Miller applies retroactively. Accordingly, we are constrained 

to agree with the Commonwealth that Cristina cannot rely on Miller to 

establish the exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii). As such, 

the PCRA court lacked jurisdiction to entertain the Petition, and Cristina’s 

LWOP sentence must remain in effect. 

 Cristina argues, in the alternative, that because he filed the Petition 

after Miller, but before Cunningham, we should remand to the PCRA court 

____________________________________________ 

3

 In his concurring opinion in Cunningham, then 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 (Castille, C.J., concurring). 
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to afford him the opportunity to amend the Petition so as to construe his 

invocation of Section 9545(b)(1)(iii) in light of the “current legal 

landscape[.]” Appellant’s Brief, at 15. Ostensibly, Cristina would amend his 

petition to raise the retroactivity questions left unaddressed in 

Cunningham, as we discussed supra. However, no such modification could 

overcome the obstacle presented by Section 9545(b)(1)(iii). Because the 

United States Supreme Court has never expressly recognized Miller to apply 

retroactively, Cristina cannot avail himself of that exception to the PCRA’s 

time-bar. The time-bar is jurisdictional in nature and, thus, the PCRA court 

lacks jurisdiction to entertain the Petition, let alone any amendment thereto. 

See Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal 

denied, 101 A.3d 103 (Pa. 2014).4 Accordingly, we deny Cristina’s remand 

request. 

____________________________________________ 

4

 In Seskey, this Court considered the appellant’s attempts to give 

retroactive effect to Miller under multiple legal theories not settled by the 

Cunningham decision, including some of the theories suggested by former 

Chief Justice Castille in his concurring opinion in Cunningham. The Seskey

Court held: 

While these arguments someday may require consideration by 

our courts, today cannot be that day. Before a court may 

address [the a]ppellant's arguments, or similar contentions, that 

court must have jurisdiction. We cannot manufacture 

jurisdiction based upon the substantive claims raised by the 

parties. Presently, we are confined by the express terms of 

subsection 9545(b)(1)(iii) and our Supreme Court's decision in 

Cunningham. Combined, those two elements require us to 

conclude that we lack jurisdiction. No substantive claim can 

overcome this conclusion. 

(Footnote Continued Next Page) 
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 Order reversed. Jurisdiction relinquished. 

 Judge Stabile joins this opinion. 

Judge Mundy files a concurring statement. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/14/2015 

(Footnote Continued) _______________________ 

Seskey, 86 A.3d at 243 (emphasis added).