J-S55042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER YOUNG

                            Appellant                    No. 615 EDA 2014


                  Appeal from the PCRA Order January 24, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0503112-1999


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 22, 2015

        Christopher Young appeals, pro se, from the order entered January 24,

2014, dismissing his second petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Young seeks relief from the

judgment of sentence of an aggregate term of life imprisonment, imposed

after his jury conviction of first degree murder, attempted murder (two

counts), criminal conspiracy, and possessing an instrument of crime (PIC).1

On appeal, Young contends the PCRA court erred in dismissing his PCRA

petition based on the following:           (1) he demonstrated a claim of actual

innocence based upon an erroneous jury charge, (2) his sentence of life

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1
    18 Pa.C.S. §§ 2502, 901, 903, and 907, respectively.
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imprisonment    without   the   possibility   of   parole   violated   both   the

constitutional right of equal protection and the prohibition against cruel and

unusual punishment, and (3) he is entitled to a new trial with a “life-

qualified” jury. Because we agree with the conclusion of the PCRA court that

Young’s petition was untimely filed, we affirm.

      The facts underlying Young’s arrest and conviction were summarized

by this Court in a prior PCRA appeal as follows:

            On December 12, 1998, Christopher Young, Dameon Ellis,
      and another unidentified man, clad in dark hooded sweatshirts
      and armed with semiautomatic weapons and a sawed-off
      shotgun, approached the corner of Park and Pike Streets in
      Philadelphia. A few days earlier, Young had encountered an old
      friend, Michael Brown, on the street. Brown informed Young that
      he recently had been winning money gambling on the corner of
      Park and Pike Streets. On the night in question, Young and his
      cohorts went to Park and Pike streets to rob Brown. The three
      men approached the group of street gamblers and asked Brown
      to take a walk to a darker area of the street. When Brown
      refused, Ellis pulled a gun. Brown then pushed Young, turned to
      run away, and was shot in the right buttocks. Another of the
      gamblers, Kasimir Devine, was shot in the chest and a third
      gambler, Shawn Pitts, was killed.

Commonwealth v. Young, 932 A.2d 266 [1557 EDA 2006], unpublished

memorandum at 2 (Pa. Super. 2007) (record citations omitted).

      Young was charged with first-degree murder, attempted murder (two

counts), criminal conspiracy and possessing an instrument of crime.           On

November 13, 2000, a jury returned a verdict of guilty on all charges, and,

following a penalty hearing, returned a sentence of life imprisonment. The



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trial court formally imposed sentence on January 24, 2001. In addition to

the term of life imprisonment for first degree murder, the court imposed a

consecutive term of 10 to 20 years’ imprisonment for conspiracy, concurrent

terms of 10 to 20 years’ imprisonment for each attempted murder charge,

and a concurrent term of one to two years’ imprisonment for PIC.            The

judgment of sentence was affirmed by this Court on February 15, 2002, and,

following the grant of allocator review, affirmed by the Pennsylvania

Supreme Court on May 27, 2004.                 Commonwealth v. Young, 797 A.2d

1027 (Pa. Super. 2002), aff’d, 849 A.2d 1152 (Pa. 2004).

       On March 7, 2005, Young filed a pro se PCRA petition. Counsel was

subsequently appointed and filed two amended petitions raising numerous

allegations of the ineffective assistance of trial counsel. On May 1, 2006, the

trial court dismissed the petition without first conducting an evidentiary

hearing. This Court affirmed the order on appeal, and the Supreme Court

denied Young’s petition for allocator review.          Commonwealth v. Young,

932 A.2d 266 (Pa. Super. 2007) (unpublished memorandum), appeal

denied, 934 A.2d 1277 (Pa. 2007). 2




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2
   In that appeal, Young challenged trial and direct appeal counsel’s
ineffectiveness for failing to raise claims regarding the sufficiency and weight
of the evidence. Id., unpublished memorandum at 1.



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       On April 26, 2012, Young filed a second, pro se PCRA petition,

asserting he was entitled to relief based upon an erroneous jury charge, and

his actual innocence. Recognizing the potential timeliness issue, Young also

asserted that pursuant to the recent decision of the United States Supreme

Court in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), he was

denied his right to effective counsel in his first PCRA petition. On June 7,

2012, the PCRA court sent Young notice, pursuant to Pa.R.Crim.P. 907, of its

intent to dismiss his petition without first conducting an evidentiary hearing.

Thereafter, on June 20, 2012, Young filed a pro se response to the court’s

Rule 907 notice, and on August 23, 2012, a supplemental PCRA petition. In

the supplemental petition, Young, relying on Miller v. Alabama, __ U.S. __,

132 S.Ct. 2455 (2012), argued his sentence of life imprisonment without

parole violated both the equal protection clause and the prohibition against

cruel and unusual punishment.             On January 24, 2014, the PCRA court

entered an order dismissing Young’s initial and supplemental petitions as

untimely filed. This timely appeal followed.3

       In his first issue, Young contends he is entitled to PCRA relief because

of an erroneous jury charge. Specifically, he asserts the trial court “imputed


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3
  The PCRA court did not direct Young to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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to [him] the murderer’s intent to kill through criminal conspiracy thereby

relieving the Commonwealth of [its] burden of proof that [Young] possessed

the specific intent to kill[.]”4 Young’s Brief at 9-10. Further, Young claims:

       This case is highly unusual in that it is undisputed that [Young]
       is actually innocent of the crimes for which he was convicted,
       namely first-degree murder where the main ingredient to
       establish a first degree murder conviction was erroneously
       imputed to [Young] though the trial court’s unconstitutional first
       degree murder jury instruction.

Id. at 12.5      Acknowledging his claim is potentially time-barred, Young

argues his “actual innocence claim falls within the ambit” of the newly

recognized constitutional right exception to the PCRA’s timing requirements.

Id. at 13.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have




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4
  Young does not provide a citation to the purported erroneous charge, nor
does he recite the specific charge in his brief. Moreover, the notes of
testimony from Young’s jury trial are not included in the certified record.
5
  We note that neither the Commonwealth nor the PCRA court has conceded
that Young is “actually innocent” of the crimes on appeal.



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no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

        In the present case, the PCRA court determined that Young’s petition

was untimely filed.         The PCRA mandates that any petition for relief,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final[.]” 42 Pa.C.S. §9545(b)(1).

        The PCRA’s timeliness requirements are jurisdictional; therefore,
        a court may not address the merits of the issues raised if the
        petition was not timely filed. The timeliness requirements apply
        to all PCRA petitions, regardless of the nature of the
        individual claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted and emphasis supplied).

        Young’s judgment of sentence became final on August 25, 2004,

ninety days after the Pennsylvania Supreme Court affirmed the conviction on

direct appeal, and Young failed to petition the United States Supreme Court

for review.       See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. R. 13.1.

Accordingly, Young had until August 25, 2005, to file a timely PCRA

petition.6   The present petition, filed nearly seven years later on April 26,

2012, is patently untimely.



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6
    We note Young did file a timely PCRA petition on March 7, 2005.




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      However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely

petition is not time-barred if a petitioner can plead and prove that, inter alia,

      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. § 9545(b)(1)(iii).    Further, any petition invoking this exception

must be filed “within 60 days of the date the claim could have been

presented.” Id. at § 9545(b)(2).

      While Young contends his “actual innocence claims falls within the

ambit of the PCRA’s subsection 9545(b)(iii)” exception, he fails to set forth

in his brief the “newly recognized constitutional right” that applies to the

facts of his case, nor does he demonstrate that his petition was filed within

the requisite 60-day time period. Young’s Brief at 13. Indeed, even a claim

of “actual innocence” does not entitle a petitioner to relief if it was not raised

in a timely filed PCRA petition.    As the Supreme Court has explained:

      [T]he “period for filing a PCRA petition is not subject to the
      doctrine of equitable tolling;” instead, the time for filing a PCRA
      petition can be extended only if the PCRA permits it to be
      extended, i.e., by operation of one of the statutorily enumerated
      exceptions to the PCRA time-bar.




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Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citation omitted),

cert. denied, 2014 WL 2881005 (U.S. Dec. 1, 2014). Accordingly, no relief

is warranted on Young’s first claim.7

       Next, Young contends his sentence of life imprisonment without the

possibility of parole violates both the equal protection clause and the

prohibition against cruel and unusual punishment in light of the United
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7
   We note that in his PCRA petition, Young relied upon the United States
Supreme Court’s decision in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct.
1309 (2012), to overcome the time bar. He asserted that the Martinez
decision, filed less than 60 days before the present PCRA petition, permitted
him to challenge the ineffectiveness of prior PCRA counsel for failing to argue
trial counsel’s ineffectiveness in not objecting to the alleged erroneous jury
charge. See Petition for Post Conviction Relief, 4/26/2012, at 4.

      This Court, however, rejected a similar claim in Commonwealth v.
Saunders, 60 A.3d 162 (Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa.
2013), cert. denied, ___ U.S. ___, 134 S. Ct. 944 (U.S. 2014), in which we
held:

       Martinez recognizes that for purposes of federal habeas
       corpus relief, “[i]nadequate assistance of counsel at initial-
       review collateral proceedings may establish cause for a
       prisoner's procedural default of a claim of ineffective assistance
       of trial counsel.” Martinez, supra at 1315. While Martinez
       represents a significant development in federal habeas corpus
       law, it is of no moment with respect to the way Pennsylvania
       courts apply the plain language of the time bar set forth in
       section 9545(b)(1) of the PCRA

Id. at 165 (emphasis supplied). Accordingly, Young was not entitled to
relief under Martinez, had he properly raised the claim in his appellate
brief.




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States Supreme Court’s decision in Miller v. Alabama, ___ U.S. ___, 132

S.Ct. 2455 (U.S. 2012).8

       In Miller, the Supreme Court held 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.’”

Miller, 132 S.Ct. at 2460 (emphasis supplied).     Although the Court made

clear that it was not foreclosing a trial court’s ability to impose a life

sentence upon a juvenile convicted of murder, it imposed a requirement

upon the trial court to “take into account how children are different, and how

those differences counsel against irrevocably sentencing them to a lifetime in

prison.” Id. at 2469. Therefore, it was the mandatory sentencing scheme

that the Supreme Court deemed unconstitutional when applied to juveniles,

holding that “a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for

juveniles.” Id. at 2475.


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8
  The Commonwealth contends this issue is waived since it was not included
in Young’s original or amended PCRA petition. We disagree. In his amended
petition, Young argued that he was entitled to relief under Miller, and
checked the box indicating that his petition was subject to the newly
recognized constitutional right exception to the timeliness requirements.
See Petition for Post Conviction Relief, 8/23/2012, at 2, 3. Moreover, we
note that Young filed the supplemental petition less than 60 days after the
Miller decision was filed on June 25, 2012. See 42 Pa.C.S. § 9545(b)(3).



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       Preliminarily, we note the Pennsylvania Supreme Court has held that

the Miller decision does not apply retroactively to benefit offenders seeking

collateral review because it “‘does not categorically bar a penalty for a class

of offenders.’”     Commonwealth v. Cunningham, 81 A.3d. 1, 10 (Pa.

2013) (quotation omitted), cert. denied, 134 S.Ct. 2724 (U.S. 2014).9

Therefore, Young’s collateral claim does not satisfy the “newly recognized

constitutional right” exception to the PCRA timing requirements.         See 42

Pa.C.S. § 9545(b)(1)(iii) (providing exception to the timing requirements

when “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”) (emphasis supplied).

       Moreover, Young concedes he was 20 years old at the time he

committed the murders.          Because the Miller Court specifically limited its

decision to juvenile offenders, it simply does not apply to the facts of

Young’s case.      See Miller, supra, 132 S.Ct. at 2469 (“We therefore hold

that the Eighth Amendment forbids a sentencing scheme that mandates life

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9
  We note that Young states in his brief, without any citation, that a case
involving the retroactivity of the Miller decision is “presently pending in the
United States Supreme Court.” Young’s Brief at 16. We decline his request
to hold this appeal “in abayance” (sic) until the Supreme Court issues an
opinion in that decision. See Young’s Brief at 16.



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in prison without possibility of parole for juvenile offenders.”) (emphasis

supplied); Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014)

(holding Miller decision inapplicable to appellant’s case when appellant was

thirty-three years old at the time he committed murder).

      Young’s attempt to circumvent this obstacle to relief by invoking the

Equal Protection Clause is similarly meritless.         Young contends that

Pennsylvania “draw[s] no distinction between juvenile and adult individuals”

for purposes of a first-degree murder conviction and sentence of life

imprisonment.    Young’s Brief at 14.        Therefore, because the offenders

comprise a single class, Young argues “[u]nder the [E]qual [P]rotection

doctrine, adults are no less entitled to special considerations than their

juvenile counterparts, particularly where age is not a statutory factor.” Id.

      This Court rejected a similar claim in Commonwealth v. Cintora, 69

A.3d 759 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). In that

case, the co-defendants, who were 19 and 21 years old at the time they

committed second degree murder, invoked the Miller decision in an attempt

to overcome their untimely filed PCRA petitions. Although they recognized

that they were not under the age of 18 at the time they committed the

crime, they argued that the holding of Miller was applicable pursuant to the

Equal Protection Clause. This Court disagreed:

      Appellants … contend that because Miller created a new Eighth
      Amendment right, that those whose brains were not fully
      developed at the time of their crimes are free from mandatory

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      life without parole sentences, and because research indicates
      that the human mind does not fully develop or mature until the
      age of 25, it would be a violation of equal protection for the
      courts to treat them or anyone else with an immature brain, as
      adults. Thus, they conclude that the holding in Miller should be
      extended to them as they were under the age of 25 at the time
      of the murder and, as such, had immature brains. However, we
      need not reach the merits of Appellants' argument, as their
      contention that a newly-recognized constitutional right should
      be extended to others does not render their petition timely
      pursuant to section 9545(b)(1)(iii).

Id. at 764 (citation omitted and emphasis in original). Accordingly, Young is

similarly entitled to no relief.

      Lastly, Young argues he is entitled to a new trial with a “life-qualified”

jury pursuant to the decision in Miller. For the reasons recited above, we

conclude the Miller decision is inapplicable to the facts of Young’s case, and,

in any event, the decision has not been held to apply retroactively.

Accordingly, no relief is warranted.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2015




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