J-S35008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

GERARD VON HAYNES

                             Appellant                      No. 1156 WDA 2016


                     Appeal from the PCRA Order June 29, 2016
                 In the Court of Common Pleas of Allegheny County
                Criminal Division at No(s): CP-02-CR-0014609-2004


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.:                               FILED JUNE 28, 2017

        Gerard Von Haynes appeals from the June 29, 2016 order denying his

second petition filed under the Post Conviction Relief Act, (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        In 2006, Von Haynes was convicted of second-degree murder.                 In

2007, the court sentenced him to a mandatory term of life imprisonment.

On     direct   appeal,     this   Court   affirmed   the   judgment   of   sentence.

Commonwealth           v.     Von    Haynes,     546    WDA     2007   (unpublished

memorandum, filed February 2, 2009). Von Haynes did not file a petition for

allowance of appeal.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Von Haynes concedes that his petition, filed on March 22, 2016, is

untimely. He claims, however, that the newly-recognized constitutional right

established in Miller v. Alabama, 132 S. Ct. 2455 (2012), is applicable

here. See 42 Pa.C.S.A. § 9545(b)(1)(iii).1

       In Miller, the United States Supreme Court held that a sentence of

mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against cruel and

unusual punishment. Id. at 2463. At the time of the murder, Von Haynes
____________________________________________


1
 The newly-recognized constitutional right exception to the one-year time
bar provides:

       (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:

                                        ****

              (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.

       (2)    Any petition invoking an exception provided in
              paragraph (1) shall be filed within 60 days of the
              date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(1)(iii),(2). On January 25, 2016, the United States
Supreme Court decided Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
holding that Miller does apply retroactively. See Montgomery, 136 S.Ct.
at 734. Here, Von Haynes’ petition, filed March 22, 2016, was filed within 60
days of Montgomery. 42 Pa.C.S.A. § 9545(b)(iii).




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was 18, in fact he was just days shy of his nineteenth birthday. However, in

support of his argument that Miller should apply, Von Haynes refers to the

“social neuroscience underpinning the [Supreme] Court’s holding,” and the

“immature brain” theory. See Appellant’s Brief, at 11-17. No relief is due.

      This Court has previously addressed this argument, holding that Miller

does not apply to individuals who were 18 years of age or older at the time

they committed murder.       See Commonwealth v. Furgess, 149 A.3d 90,

93 (Pa. Super. 2016) (Miller does not apply to 19-year-old appellant

convicted of homicide where appellant claimed he was “technical juvenile”

and referenced immature brain development to support his claim).

      The record supports the PCRA court’s determination that Von Haynes’

petition was not timely filed and that he failed to plead any valid exception

to the timeliness requirements of the PCRA.     We, therefore, affirm.   See

Commonwealth v. Walls, 993 A.2d 289, 294–295 (Pa. Super. 2010)

(PCRA court’s findings will not be disturbed unless there is no support for

findings in the certified record).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




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J-S35008-17


Date: 6/28/2017




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