J-S12036-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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TROY W. DAVID,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1893 EDA 2015

Appeal from the PCRA Order May 13, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1217401-1984

BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.: FILED MARCH 22, 2016

Troy W. David (Appellant) pro se appeals in forma pauperis (IFP) from 

the May 13, 2015 order that denied his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse the 

PCRA order, vacate Appellant’s judgment of sentence, and remand for 

resentencing.

In 1986, Appellant was sentenced to life imprisonment without 

possibility of parole following his conviction for second-degree murder based 

upon events that took place when Appellant was 17 years old. The order 

from which Appellant filed the instant appeal denied his request for PCRA 

relief based upon the United States Supreme Court’s decision in Miller v. 

Alabama, 132 S.Ct. 2455 (2012), in which the Court held unconstitutional 

mandatory sentences of life imprisonment without possibility of parole 
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imposed upon individuals who were juveniles at the time they committed 

homicides. The PCRA court determined that Appellant did not properly 

invoke the newly-recognized-constitutional-right exception to the PCRA’s 

one-year timeliness requirement provided in 42 Pa.C.S. §9545(b)(1)(iii) 

because our Supreme Court held in Commonwealth v. Cunningham, 81 

A.3d 1, 11 (Pa. 2013), that Miller does not apply retroactively. 

While this appeal was pending, the U.S. Supreme Court decided in 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a 

new substantive rule of law which applies retroactively. Thereafter, this 

Court held that Montgomery renders “retroactivity under Miller effective as 

of the date of the Miller decision.” Commonwealth v. Secreti, 2016 Pa. 

Super. 28, 2016 WL 513341 at *5 (Pa. Super. filed February 9, 2016). 

Under Secreti, Appellant’s PCRA petition meets the timeliness 

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii). Under Miller, 

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form 

of resentencing following judicial consideration of appropriate age-related 

factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).1 

 

1

[A]t a minimum [the sentencing court] should consider a 

juvenile’s age at the time of the offense, his diminished 

culpability and capacity for change, the circumstances of the 

crime, the extent of his participation in the crime, his family, 

home and neighborhood environment, his emotional maturity 

and development, the extent that familial and/or peer pressure 

may have affected him, his past exposure to violence, his drug 
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Appellant is entitled to the assistance of counsel for his resentencing 

proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966) 

(noting that sentencing is a critical stage of a criminal proceeding at which a 

criminal defendant has a constitutional right to counsel). Because Appellant 

has established his indigency in order to proceed IFP, the trial court upon 

remand shall appoint counsel to represent Appellant. 

Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished.2

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/2016

 

and alcohol history, his ability to deal with the police, his 

capacity to assist his attorney, his mental health history, and his 

potential for rehabilitation.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745 

(Pa. Super. 2012)).

2 Given our disposition, two Appellant’s Applications for Leave to File PostSubmission Communications are denied as moot.