Commonwealth v. Lee

• Citation: 206 A.3d 1
• Decision Date: 01 March 2019
• Docket Number: No. 1891 WDA 2016,1891 WDA 2016
• Parties: COMMONWEALTH of Pennsylvania v. Avis LEE, Appellant
• Court: Superior Court of Pennsylvania

206 A.3d 1

COMMONWEALTH of Pennsylvania

v.Avis LEE, Appellant

No. 1891 WDA 2016

Superior Court of Pennsylvania.

Argued October 23, 2018

Filed March 1, 2019

Bret D. Grote, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

OPINION BY LAZARUS, J.:

Avis Lee appeals from the order dismissing, as untimely, her sixth petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. The issue before this en banc Court is whether, following the United States Supreme Court's decision in Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Lee, who was over the age of 18 at the time of the commission of her offense, may invoke the decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), as an exception to the timeliness requirements of the PCRA. After our review of the parties' arguments, as well as the amicus brief in support of Lee,¹ we conclude that she cannot invoke Miller to overcome the PCRA time-bar and, therefore, the PCRA court correctly determined it did not have jurisdiction. Accordingly, we are constrained to affirm.

In 1981, a jury convicted Lee of second-degree murder. The convictions stemmed from the shooting death of Robert Walker during an attempted robbery. The evidence at trial established that Lee suggested the robbery to her brother, Dale Stacy Madden, that Lee was designated to serve as the lookout, and that Lee was aware that her brother was carrying a loaded gun. Lee was tried jointly with co-defendants Madden and another man, co-conspirator Arthur Jeffries.

Following conviction, the court properly sentenced Lee to a mandatory life sentence without the possibility of parole. On appeal, this Court affirmed her judgment of sentence. See Commonwealth v. Lee , 302 Pa.Super. 569, 448 A.2d 1159 (1982) (unpublished memorandum). Over the past twenty-two years, Lee has unsuccessfully sought state post-conviction relief and habeas corpus relief in the federal courts.

In 2012, the United States Supreme Court decided Miller , supra , which held mandatory life without parole sentences for those under the age of 18 at the time of their crimes violate the Eighth Amendment's prohibition on "cruel and unusual punishments."

Miller , 567 U.S. at 465, 132 S.Ct. 2455.² The Supreme Court held that a juvenile homicide defendant could only be sentenced to life without the possibility of parole if he or she is determined to be permanently incorrigible, irreparably corrupt, or irretrievably depraved. Miller , 567 U.S. at 471, 132 S.Ct. 2455. Thereafter, in Montgomery , the Court held that Miller applies retroactively to cases on collateral review, opening the door for those eligible to seek collateral relief. Montgomery , 136 S.Ct. at 732-37.

On March 24, 2016, fifty-nine days after the Court decided Montgomery , Lee filed her sixth PCRA petition, asserting she was a "virtual minor" at the time of her crime and was therefore entitled to the benefit of the constitutional rule announced in Miller and made retroactive by Montgomery . She claimed the sentencing court in her case "did not have the ability to consider the mitigating qualities of [her] youth during sentencing[.]" Amended PCRA Petition, 3/24/16, at 13. Lee argued, therefore, that the rationale underlying the Miller holding, including consideration of characteristics of youth and age-related facts identified as constitutionally significant by the Miller Court, provides support for extending the benefit of Miller to her case.

The PCRA court found Miller inapplicable because Lee was not under the age of 18 at the time of her crime. Lee was born on January 23, 1961; on November 2, 1979, when the crime occurred, she was 18 years and nine months old. Finding Lee had failed to prove the applicability of the newly-recognized constitutional right exception to the PCRA time-bar under section 9545(b)(1)(iii), the PCRA court dismissed her petition as untimely.

On appeal, a panel of this Court affirmed. The decision of our Court in this case, bound by precedent on this issue, rejected the "virtual-minor theory" as a basis to invoke section 9545(b)(1)(iii), concluding Lee could not rely on Miller to bring herself within the new constitutional right exception. See 42 Pa.C.S.A. § 9545(b)(1)(iii) ; see also Commonwealth v. Furgess , 149 A.3d 90, 91–94 (Pa. Super. 2016) (holding petitioners' contention that Miller should be extended to persons over age 18 whose brains were immature at time of their offenses did not bring petition within exception to time-bar for petitions asserting newly-recognized constitutional right); Commonwealth v. Cintora , 69 A.3d 759, 764 (Pa. Super. 2013), abrogation on other grounds recognized in Furgess , supra at 94 (concluding contention that newly-recognized constitutional right should be extended to others does not render petition timely pursuant to section 9545(b)(1)(iii) ).³

On March 9, 2018, this Court granted Lee's petition for reargument en banc to address the issue of whether Miller should apply to those who ground their claims on the Miller rationale -- the "immature brain" theory -- despite Miller 's express age limitation. Lee contends that the express age of legal maturity is "arbitrary" and was not central to the Miller rationale, which, in sum, concerns whether the commission of a crime "reflects unfortunate yet transient immaturity" of a young offender rather than "irreparable corruption[.]" Miller , 567 U.S. at 479-80, 132 S.Ct. 2455 (quoting Roper v. Simmons , 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ). Lee cites to Seminole Tribe of Florida v. Florida , 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410 (2017) (" Batts II "), to support her argument that the rationale of Miller should extend the Miller holding to her. Lee further urges this Court to reexamine our prior decisions in Cintora and Furgess in light of Eighth Amendment sentencing jurisprudence espoused in Miller . For the reasons that follow, and despite Lee's compelling arguments, we reaffirm our conclusion that Miller does not afford collateral relief to a petitioner who was over the age of 18 at the time of his or her offense. We also hold that the rationale the Miller Court applied to offenders who were age 14 at the time of their offenses, cannot be applied to defendants over the age of 18 at the time of their offenses in order to satisfy the newly-recognized constitutional right exception to the PCRA time-bar.

Initially, we note that this Court granted reargument en banc in this case on March 9, 2018.⁴ Five days later, on March 14, 2018, this Court filed its decision in Com monwealth v. Montgomery , 181 A.3d 359 (Pa. Super. 2018) (en banc), appeal denied , ––– Pa. ––––, 190 A.3d 1134 (2018).

In Commonwealth v. Montgomery ,⁵ petitioner, who was 22 years old at the time he committed murder, for which he was sentenced to life imprisonment without the possibility of parole, argued that his brain was not fully developed. Petitioner contended that he satisfied the new constitutional rule exception to the PCRA time-bar because he was entitled to relief under Miller , made retroactive by Montgomery . We disagreed, holding that petitioner failed to show that the new constitutional rule extended to individuals who had committed homicides after they reached the age of 18. Commonwealth v. Montgomery , 181 A.3d at 366. Relying on Furgess and Cintora , this Court held that simply contending that a newly-recognized constitutional right should be extended to others does not satisfy the new constitutional rule exception to the PCRA's timeliness requirement. Commonwealth v. Montgomery , 181 A.3d at 366 (citing Furgess , 149 A.3d at 94, and Cintora , 69 A.3d at 764 ). We also found meritless petitioner's argument that Furgess was distinguishable. We stated:

[Petitioner] argues that Furgess is distinguishable from the case at bar because in Furgess the petitioner only raised a claim under the Eighth Amendment while he also raises a claim under the Fourteenth Amendment's Equal Protection Clause. This argument, however, is misplaced. Neither the Supreme Court of the United States nor our Supreme Court has held that Miller announced a new rule under the Equal Protection Clause. Instead, Miller only announced a new rule with respect to the Eighth Amendment. Thus, contrary to [petitioner's] assertion, his Equal Protection Clause argument is also an attempt to extend Miller 's holding.

Commonwealth v. Montgomery , 181 A.3d at 366 (emphasis added).⁶ Notably, we declined petitioner's invitation to overturn Furgess , stating that "the three-judge panel's analysis is correct[.]" Id. at 367.

On the same day this Court filed its decision in Commonwealth v. Montgomery , the Commonwealth filed a motion for clarification of the order granting en banc review in light of that decision. The Commonwealth averred: "[T]this Court rejected Montgomery's attempt to extend the holding in Miller to those who were 18 years of age or older when they committed their crimes under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment." Motion for Clarification, 3/14/18, at ¶ 3. In response, Lee averred that her "rationale versus specific holding" argument renders the right established in Miller applicable to her, and that "the ‘right’ established in Miller cannot be limited to the narrow ‘holding’ identified by this Court in Com[monwealth] v. Montgomery , Cintora , and Furgess ." Answer to Motion for Clarification, 4/12/18, at ¶¶ 10-18, 29.⁷ By order dated April 25, 2018, this Court denied the Commonwealth's application for clarification. In her substituted brief on en banc review, Lee presents her claims as follows:

I. Did the PCRA court err in rejecting [Lee

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