J-S57024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 SYLVESTER SMITH                         :
                                         :
                    Appellant            :       No. 2714 EDA 2017


                 Appeal from the PCRA Order August 4, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0608161-2005


BEFORE:    PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

JUDGMENT ORDER BY PLATT, J.:                   FILED NOVEMBER 06, 2018

      Appellant, Sylvester Smith, appeals pro se from the order dismissing his

second petition for relief pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The facts of this case are not in dispute.   (See Commonwealth v.

Smith, 2444 EDA 2006 (Pa Super. filed February 25, 2008) unpublished

memorandum at *1). On January 3, 2003, Appellant fatally shot Caliph Davis,

in an apparent murder for hire over an $8,000 drug debt. (See id. at **1-

2).   Appellant was at least thirty, and possibly thirty-one, at the time he

committed the murder.     (See Appellant’s Memorandum of Fact and Law,

3/28/16, at 24 (giving his age at time of offense as thirty-one); Pre-Sentence

Report, 6/22/06 (noting date of birth as 8/27/72); Commitment Order,

8/02/06 (same); see also PCRA Court Opinion, 10/19/17, at 1 (thirty-one)).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S57024-18


       A jury convicted Appellant of murder of the first degree and related

offenses. On August 2, 2006, the court imposed an aggregate life sentence.

This Court affirmed, our Supreme Court denied allowance of appeal, and

Appellant’s judgment of sentence became final on or about November 6, 2008.

Appellant claims this second PCRA petition, filed March 28, 2016, is timely,

based on the statutory exception for a newly recognized constitutional right.1

       In a non-compliant and somewhat convoluted brief, Appellant maintains

that he is entitled to relief under Montgomery v. Louisiana, 136 S. Ct. 718

(2016), applying Alleyne v. United States, 133 S. Ct. 2151 (2013), based on



____________________________________________


1 Although the timeliness requirement is mandatory and jurisdictional, an
untimely petition may be received when the petition alleges, and the petitioner
proves, that one of the three limited exceptions to the time for filing set forth
at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met. See Commonwealth
v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three exceptions to
the timeliness requirement are:

              (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 provided in
       this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be
filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).


                                           -2-
J-S57024-18


Teague v. Lane, 489 U.S. 288 (1989) (OAJC). (See Appellant’s Brief, at 7).

Appellant argues chiefly that he is entitled to PCRA relief because life without

parole is a disproportionate punishment for homicide offenders between the

ages of eighteen to twenty-five. (See id.). For many reasons, we disagree.

      Our standard of review of an order denying PCRA relief is “whether the

PCRA court’s determination is supported by the evidence of record and free of

legal error. We grant great deference to the PCRA court’s findings, and we

will not disturb those findings unless they are unsupported by the certified

record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2017)

(citation omitted).

      Most notable among the numerous defects in Appellant’s argument,

none of the cases he cites holds that the special treatment of offenders under

the age of eighteen extends to offenders who were thirty when they

committed murder. See e.g., Miller v. Alabama, 567 U.S. 460, 465 (2012)

(“We therefore hold that mandatory life without parole for those under the

age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’”) (emphasis added).

Appellant fails to prove an exception to the time bar. Because Appellant’s age

is dispositive for the exception claimed, we need not address his additional

claims, and we decline to do so. The PCRA court properly dismissed his second

petition as untimely, with no exception pleaded and proven.

      Order affirmed.


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J-S57024-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/18




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