Commonwealth v. Moody

1

COMMONWEALTH OF PENNSYLVANIA v. BRANDON NATHANIEL N. MOODY Appellant

No. 2485 EDA 2021

J-A28043-22

Superior Court of Pennsylvania

February 27, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered October 21, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006659-2007

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Brandon Nathaniel N. Moody ("Moody") appeals pro se from the order dismissing as untimely his second petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA").^[1] We affirm.

The relevant facts and procedural history of this appeal are as follows. In 2006, when Moody was eighteen years and nine months old, he shot and killed Israel Rivera. A jury found Moody guilty of first-degree murder and related offenses, and the trial court sentenced him to a mandatory prison sentence of life without parole for murder and concurrent sentences for the other crimes. This Court affirmed Moody's convictions, and our Supreme Court denied allowance of appeal on November 14, 2011. See Commonwealth v Moody, 24 A.3d 449 (Pa. Super.) (unpublished memorandum), appeal denied, 34 A.3d 828 (Pa. 2011). Moody timely filed a first PCRA petition in 2012, and the court appointed counsel ("PCRA counsel"), who filed a no-merit letter and a petition to withdraw from representation.^[2] Lengthy proceedings ensued, during which Moody filed pro se responses to counsel's no-merit letter and sought leave to file amended petitions, and asserted PCRA counsel's ineffectiveness for filing a no-merit letter. The PCRA court issued a Rule 907 notice, and Moody filed a pro se response again seeking leave to amend his petition and, in relevant part, asserting a new claim that the mandatory imposition of a life without parole sentence was unconstitutional because Miller v. Alabama, 567 U.S. 460 (2012),^[3] should be extended to offenders over the age of eighteen. See Pro Se Response to Intent to Dismiss First PCRA Amended Petition, 6/3/15, at 14-15 (referencing studies cited in Miller indicating that adolescence did not end until the age of twenty). The PCRA court ordered PCRA counsel to respond to Moody's pro se filings, and PCRA counsel filed a supplemental no-merit letter. In June 2018, the PCRA court denied relief without a hearing and permitted PCRA counsel to withdraw. Moody took a pro se appeal, and this Court affirmed the PCRA court's denial of Moody's first PCRA petition.^[4] See Commonwealth v. Moody, 221 A.3d 291, 2019 WL 3913232 (Pa. Super. 2019) (unpublished memorandum). Our Supreme Court denied allowance of appeal on March 16, 2020. See Commonwealth v. Moody, 221 A.3d 291, 2019 WL 3913232 (Pa. Super. 2019) (unpublished memorandum), appeal denied, 227 A.3d 313 (Pa. 2020).

Moody filed the instant pro se PCRA petition, his second, in March 2021, wherein he asserted that the mandatory imposition of his life without parole sentence was unconstitutional. Moody acknowledged that Miller did not apply to offenders over eighteen years of age and maintained that he was not attempting to "extend" Miller. See Pro Se PCRA Petition, 3/12/21, at 2. Rather, Moody claimed that he obtained new information that individuals over eighteen years old have similar behaviors, cognitive levels, and brain functions as those under eighteen years old. See id. Those facts, he noted, had been discussed by or presented to other courts in Cruz v. United States, 11-CV-787 (JCH), 2018 WL 1541898 (D. Conn. Mar. 29, 2018), vacated and remanded, 826 Fed.Appx. 49 (2d Cir. 2020), and People v. Antolin Garcia-Torres, No. 213515 (Ca. Super. Ct. (Santa Clara Cty. 2012 to 2017)). See Pro Se PCRA Petition, 3/12/21, at 2.^[5] He also alleged that prison officials had interfered with the timely presentation of his constitutional claim by confiscating his mail containing documents related to Cruz and Garcia-Torres and refusing him access to his mail before the PCRA court denied relief on his first PCRA petition. See id. at 1-2, 5.^[6] In sum, Moody asserted that he discovered more recent scientific studies to challenge the categorical distinction between individuals, like himself, who were just over eighteen years old at the time of their offense and those who were under eighteen years of age. See generally Roper v. Simmons, 543 U.S. 551, 572-75 (2005) (adopting a categorical distinction at eighteen years of age and holding that the imposition of the death penalty for "juvenile offenders" who committed an offense when they were under eighteen years of age is unconstitutional); Graham v. Florida, 560 U.S. 48, 68, 82 (2010) (holding that sentences of life without parole were unconstitutional for juvenile offenders who did not commit homicide and noting that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds"); Miller, 567 U.S. at 465, 479-80 (extending the rationale of Roper and Graham to hold that the mandatory imposition of a sentence of life without parole on those who were under the age of eighteen at the time of the offense was unconstitutional). Moody concluded that he properly alleged newly discovered facts and governmental interference so that the PCRA court had jurisdiction to consider his claims that his sentence constituted a cruel and unusual punishment and denied him equal protection.

The PCRA court issued a Rule 907 notice of intent to dismiss Moody's pro se PCRA petition in August 2021 and dismissed the petition on October 21, 2021. Moody timely appealed. The PCRA court did not order a Pa.R.A.P. 1925(b) statement but filed an opinion reasoning that Moody failed to establish a PCRA time bar exception because court decisions do not constitute new facts. See PCRA Court Opinion, 12/22/21, at 3 (citing Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), abrogation recognized in Commonwealth v. Lee, 206 A.3d 1, 3 n.3 (Pa. Super. 2019) (en banc)). The PCRA court further concluded that even if prison officials withheld his mail, Moody could have challenged the constitutionality of his sentence in a post-sentence motion, his direct appeal, or in his first PCRA proceeding. See id.

Moody raises the following issues for our review:

I. Whether the PCRA [c]ourt erred in dismissing the second/subsequent PCRA petition without first holding a hearing to determine if the facts presented therein, including the supporting documents attached, accepted as true, are sufficient to establish the exceptions to the PCRA's one year time bar for governmental interference and/or after-discovered facts?

II. Whether the PCRA [c]ourt erred in concluding that the averments of two reputable experts in adolescent brain development, revealed in both a declaration and postconviction hearing testimony, respectively, are not considered facts for the purpose of satisfying the time bar exceptions?

III. Whether the facts presented by Doctors Bigler and Steinberg, regarding the diminished culpability of late adolescents (over 18), raise a genuine issue that the mandatory life without parole sentence imposed upon [Moody] is unconstitutional, which is cognizable for relief pursuant to 42 Pa.C.S.[A. §] 9543(a)(2)(vii)?

Moody's Brief at 4-5.

Moody's first two issues are related; therefore, we address together his claims that he timely filed the instant PCRA petition. Our standard of review is well-settled:

When reviewing the denial of a PCRA petition, we must determine whether the PCRA court's order is supported by the record and free of legal error. Generally, we are bound by a PCRA court's credibility determinations. However, with regard to a court's legal conclusions, we apply a de novo standard.

Lee, 206 A.3d at 6 (internal citation omitted).

Under the PCRA, any petition "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Moody acknowledges that the instant PCRA petition was facially untimely because he did not file it until 2021, more than nine years after his convictions became final. See Moody's Brief at 15; see also 42 Pa.C.S.A. § 9545(b)(1), (3). Therefore, we consider whether he stated an exception to the PCRA time bar.

Pennsylvania courts may consider an untimely PCRA petition if the petitioner explicitly pleads and proves one of three exceptions set forth under section 9545(b)(1), which provides:

(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

(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

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