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[U] Commonwealth v. Peifer

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID K. PEIFER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 31, 2013 in the Court of Common Pleas of Somerset County Criminal Division at No.: CP-56-MD-0000223-1993

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, David K. Peifer, appeals pro se from the denial of his third petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On January 10, 1994, a jury convicted Appellant of murder of the first degree and the trial court immediately sentenced him to life imprisonment. A panel of this Court affirmed the judgment of sentence on December 7, 1994, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on May 16, 1995. (See Commonwealth v. Peifer, 657 A.2d 52 (Pa.Super. 1994) (unpublished memorandum), appeal denied, 659 A.2d 986 (Pa. 1995)).

On January 9, 1997, Appellant filed a first pro se PCRA petition. The PCRA court appointed counsel on January 28, 1997. On June 27, 1997, the court notified Appellant of its intention to deny the petition without a hearing. The court denied the petition on December 2, 1997. Appellant appealed the PCRA court's decision and this Court, observing that "appointed counsel failed to participate in any meaningful way with his indigent client's request for PCRA relief[, ]" remanded for the appointment of new counsel on February 23, 1998. (Commonwealth v. Peifer, 157 PGH 98, unpublished memorandum at 4-5 (Pa.Super. Feb. 23, 1998)). Upon remand, the PCRA court appointed new counsel and, on December 6, 2000, it issued a Rule 907 notice. See Pa.R.Crim.P. 907. On January 3, 2001, the PCRA court denied the petition, and this Court affirmed the decision on December 10, 2001. (See Commonwealth v. Peifer, 792 A.2d 1286 (Pa.Super. 2001) (unpublished memorandum)). Appellant did not seek review in the Pennsylvania Supreme Court.

On January 18, 2008, Appellant filed a pro se writ of habeas corpus that the trial court treated as a second PCRA petition. On January 29, 2008, the PCRA court notified Appellant of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P. 907. Appellant responded to the notice pro se on February 14, 2008. On March 4, 2008, the PCRA court dismissed the petition. Appellant timely appealed and this Court dismissed his appeal on August 26, 2008, for his failure to file a brief. (See Order, 620 WDA 2008, at 1).

Appellant filed this instant, third pro se PCRA petition on August 21, 2012. On July 2, 2013, after a preliminary hearing to determine the existence of any material fact, the PCRA court issued a Rule 907 notice of its intent to dismiss Appellant's petition. See Pa.R.Crim.P. 907. Appellant responded pro se on July 19, 2013, and, on July 31, 2013, the PCRA court dismissed the petition as untimely. Appellant timely appealed.[1]

Appellant raises two issues for our review:

I. Whether, based upon the United States Supreme Court's reasoning in the consolidated cases of Miller v. Alabama[, 132 S.Ct. 2455 (2012)] and Jackson v. Hobbs, [132 S.Ct. 1733 (2012)], mandatory Life-Without-Parole sentences for individuals over the age of seventeen, but under the age of twenty-five violates [sic] the Eighth Amendment to the U.S. Constitution, Article 5 of the Universal Declaration of Human Rights and Article I, Section 13 of the Pennsylvania Constitution[?]
II. Whether the PCRA court erred in failing to address the merits of Appellant's claim and failing to hold an evidentiary hearing for the purpose of taking testimony from a qualified expert in the relevant fields of science[?]

(Appellant's Brief, at 3) (emphasis omitted).

Before we are able to consider the merits of Appellant's claims on appeal, we must determine whether the PCRA court properly determined that his petition was untimely, and that therefore ...


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