Submitted: February 4, 2013.
Appeal from the PCRA Order of the Court of Common Pleas, Allegheny County, Criminal Division, No.: CP-02-CR-0013783-1992. Before WILLIAMS, J.
Chris R. Eyster, Ligonier, for appellant.
Michael W. Streily, Deputy District Attorney and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
BEFORE: ALLEN, J., WECHT, J., and STRASSBURGER, J.[*]
In this case, we are called upon to consider the United States Supreme Court's decision in Miller v. Alabama ,
__ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) in light of the Pennsylvania Supreme Court's decision in Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013).
Regis Seskey (" Appellant" ) appeals from a May 1, 2012 order. That order dismissed
Appellant's second petition for relief under the Post-Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-46, as untimely. We affirm.
When Appellant was seventeen years old, he was arrested and charged with criminal homicide for the shooting death of Mark Bova. On March 14, 1994, following a jury trial, Appellant was convicted of first-degree murder. On March 22, 1994, Appellant was sentenced to life in prison. On February 2, 1996, we affirmed Appellant's judgment of sentence. See Commonwealth v. Sesky , No. 600 Pittsburgh 1994, slip op. at 1, 450 Pa.Super. 718, 676 A.2d 286(Pa. Super. Feb. 2, 1996). The Supreme Court denied allocatur on August 16, 1996. See Commonwealth v. Seskey , 545 Pa. 670, 681 A.2d 1342 (Pa. 1996) ( per curiam ).
On August 15, 1997, Appellant filed his first PCRA petition. Without a hearing, the PCRA court dismissed Appellant's petition on August 11, 1998. On November 25, 2002, we affirmed the dismissal. See Commonwealth v. Seskey , No. 330 WDA 2002, slip op. at 10, 816 A.2d 334 (Pa. Super. Nov. 25, 2002). On July 21, 2003, our Supreme Court again denied allocatur. See Commonwealth v. Seskey , 573 Pa. 716, 828 A.2d 350 (Pa. 2003) ( per curiam ).
Appellant took no further action on his case until July 19, 2010, seven years after his first PCRA petition reached finality. The PCRA court set forth the procedural history as it transpired after Appellant's July 19, 2010 petition as follows:
Seven years after his second request for our state Supreme Court to review his case, [Appellant] filed a pro se Motion for PCRA relief. Counsel was appointed and, on February 15, 2012, he filed a two[-]headed pleading. His first claim was a Petition for Habeas Corpus Relief pursuant to Article 1, Section 14 of the Pennsylvania Constitution. His second claim was based upon the [PCRA]. The Court directed the Commonwealth to file an answer. It complied on March 14, 2012. A week later, this Court issued an order indicating its intent to dismiss [Appellant's] second PCRA[, wherein this Court stated the following:]
The Court takes this position because of the one (1) year time limitation at [42 Pa.C.S. § 9545(b)] and [Appellant's] failure to satisfy any exceptions to the jurisdictional bar. The Court is also persuaded by the waiver argument advanced by the Commonwealth. Additionally, the Court finds -- and is obligated to follow -- the decision of
Commonwealth v. Ortiz , 2011 PA Super 56, 17 A.3d 417 (Pa. Super. 2011).
Ortiz ruled the U.S. Supreme Court's decision in [ Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)], does not apply to homicide cases. This is a homicide case from 1992! " At some point litigation must come to an end."
Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638, 643 (Pa. 1998).
Order, (March 21, 2012). On April 30, 2012, [Appellant] filed a response to the Court's notice to dismiss. It raised no new claims. It responded to none of the justifications relied upon by the Court. It said [Appellant] " wishes to proceed with" his PCRA. Response, [¶ 2], (Apr. 30, 2012). On May 1, 2012, the Court followed up on its previously expressed intent and dismissed the PCRA petition.
* * *
On May 14, 2012, a timely Notice of Appeal (" NOA" ) was filed. A [Pa.R.A.P.] 1925(b) order followed. On June 4, 2012, a timely Concise Statement of Errors Complained of on Appeal was filed. Through a June 18[, 2012]
order, the Court directed [Appellant] to file an Amended Concise Statement [to clarify one paragraph raised in the original statement.] The Amended Concise Statement was filed on June 25[, 2012]. [Appellant] simply eliminated [the unclear paragraph] from his original concise statement. As such, the matters [Appellant] intends to litigate on appeal are as follows:
1. The Court erred in denying [Appellant's] petition without a hearing.
2. The Court erred in denying [Appellant's] petition pursuant to Graham v. Florida and its progeny.
3. The Court erred in denying [Appellant's] petition where the Commonwealth violated [Appellant's] due process rights and
Brady v. Maryland [, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] by failing to disclose that [an] accomplice ...