J-S35007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 RUSSELL L. VANCE                        :
                                         :
                    Appellant            :   No. 1223 EDA 2018

                  Appeal from the PCRA Order April 5, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0216811-1985


BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 30, 2019

      Appellant, Russell L. Vance, appeals pro se from the order entered on

April 5, 2018, dismissing as untimely his ninth petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9646. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.    On February 3, 1986, Appellant entered an open guilty plea to

murder, generally, and possessing instruments of crime after shooting his

landlord nine times in an apparent rental payment dispute.        Following a

degree-of-guilt hearing, Appellant was convicted of first-degree murder and

sentenced to a mandatory sentence of life imprisonment without the

possibility of parole. This Court affirmed Appellant’s judgment of sentence on

August 1, 1988, and our Supreme Court denied allowance of appeal on March

15, 1989.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Thereafter, Appellant filed eight PCRA petitions, none of which afforded

him relief. In his eighth petition, Appellant argued that he was entitled to

relief based upon the United States Supreme Court decision in Miller v.

Alabama, 560 U.S. 460 (2012). We disagreed, however, finding that Miller

was inapplicable to Appellant.    See Commonwealth v. Vance, 121 A.3d

1136 (Pa. Super. 2015) (unpublished memorandum). Therein, we noted that

“Miller applies to juveniles sentenced to life imprisonment without the

possibility of parole[, but] Appellant was 39 [years old] and, therefore, not a

minor when he committed his crime.” Id. at *6 (footnote omitted).

      On February 2, 2016, Appellant filed the instant pro se PCRA petition,

his ninth, alleging that the United States Supreme Court decision in

Montgomery v. Louisiana, 136 S.Ct. 718, 723 (2016), which applied Miller

retroactively to cases still pending on state collateral review, entitled him to

relief. On May 30, 2017, the PCRA court sent Appellant notice pursuant to

Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition because he

failed to validly invoke an exception to the PCRA’s one-year jurisdictional time

bar. Moreover, the PCRA court noted that Appellant was not entitled to relief

under Montgomery, for the same reason that he was not entitled to relief

under Miller, because he was 39 years old at the time of the crimes.

      On June 19, 2017, Appellant filed a response to the PCRA court’s Rule

907 notice. Therein, Appellant alleged that because he and the victim were

both employed by the United States Postal Service, the trial court lacked

jurisdiction over this case and Appellant should have been tried in federal

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court.     Appellant, however, did not seek leave of court to amend his PCRA

petition to include this additional issue.         Moreover, the response did not

elaborate on Appellant’s original claims raised pertaining to Montgomery and

Miller.        By order and opinion entered on April 5, 2018, the trial court

dismissed Appellant’s PCRA petition as untimely.               In the accompanying

opinion, the PCRA court again noted that Miller and Montgomery were

inapplicable to Appellant based upon his age at the time of the crime. The

PCRA court further recognized that although the PCRA provides relief for a

claim of lack of jurisdiction, such a claim is still subject to the PCRA’s one-year

timeliness requirement and Appellant failed to invoke an exception to the time

bar. Appellant filed a pro se notice of appeal on April 17, 2018.

         On appeal, Appellant presents the following issues, pro se, for our

review:

          I.     Whether the [PCRA] court erred by denying Appellant’s PCRA
                 petition alleging that the trial judge did not have jurisdiction over
                 [Appellant’s original murder charges?]

         II.     Whether the [PCRA] court erred by denying Appellant’s PCRA
                 petition because of untimeliness?

      III.       Whether trial counsel was ineffective by failing to challenge the
                 jurisdiction of the trial court since both Appellant and the victim []
                 were full-time employees of the U.S. [P]ostal [S]ervice?


Appellant’s Pro Se Brief at 4 (cleaned up).

         We review an order dismissing a petition under the PCRA in the
         light most favorable to the prevailing party at the PCRA level. This
         review is limited to the findings of the PCRA court and the evidence
         of record. We will not disturb a PCRA court's ruling if it is supported
         by evidence of record and is free of legal error. This Court may

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        affirm a PCRA court's decision on any grounds if the record
        supports it. Further, we grant great deference to the factual
        findings of the PCRA court and will not disturb those findings
        unless they have no support in the record. However, we afford no
        such deference to its legal conclusions. Where the petitioner
        raises questions of law, our standard of review is de novo and our
        scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

        Initially, we note that, on appeal, Appellant has abandoned his original

claim pertaining to Miller and Montgomery and, thus, we find that issue

waived. Our Rules of Appellate Procedure state unequivocally that each

question an appellant raises on appeal is to be supported by discussion with

reference to the record and analysis of pertinent authority. See Pa.R.A.P.

2119.     Appellate arguments which fail to adhere to our rules may be

considered waived, and arguments which are not appropriately developed are

waived. See Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa.

Super. 2006) (deeming the appellant's claims waived under Rule 2119(a)

because he did not develop meaningful argument with specific references to

relevant caselaw and to the record to support his claims); see also

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (“Failure

to brief an issue is to waive it, as such omission impedes our ability to address

the issue on appeal.”). Thus, the original issue presented in Appellant’s most

recent PCRA petition is waived.

        Next, we recognize that all of Appellant’s appellate issues, as presented,

center on his claim that the Philadelphia Court of Common Pleas lacked

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jurisdiction over his 1986 criminal case because both he and the victim were

federal employees at the time of the crime. Thus, Appellant posits that he

should have been tried in federal court. Appellant raised this issue initially in

his response to the PCRA court’s notice of intent to dismiss the PCRA petition

under Pa.R.Crim.P. 907. He did not seek leave to amend the current PCRA

petition.

      This Court previously determined that issues not included in an original

PCRA petition or a court-approved amended PCRA petition are deemed

waived. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011) (“It is well-settled that issues not raised in a PCRA petition cannot be

considered on appeal.”)    We stated:

      The purpose behind a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, see Commonwealth v. Williams,
      782 A.2d 517, 526 (Pa. 2001), the ultimate goal being to permit
      merits review by the PCRA court of potentially arguable claims.
      The response is an opportunity for a petitioner and/or his counsel
      to object to the dismissal and alert the PCRA court of a perceived
      error, permitting the court to “discern the potential for
      amendment.” Id. at 527. The response is not itself a petition and
      the law still requires leave of court to submit an amended petition.
      See Pa.R.Crim.P. 905(A).

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012). In order

to aver a new PCRA claim, as Appellant has done here, the petitioner must

seek leave to amend his PCRA petition. Id. at 1192. When a petitioner has

“not sought permission to amend [a] petition to raise [] new claims, the PCRA

court [is] not required to address the issues [raised in response to a Rule 907


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notice]. Id.; see also Commonwealth v. Mason, 130 A.3d 601, 627, 634

(Pa. 2015) (“The petitioner bears the onus of informing the PCRA court that

he or she seeks to add claims through an amended petition, and, in response,

the court shall freely grant leave to amend where doing so achieves

substantial justice consistent with the dictates of Pa.R.Crim.P. 905(A).”).

Because Appellant did not seek leave to amend his PCRA petition to include

his wholly unrelated federal jurisdiction claim, the PCRA court was under no

obligation to review the merits of this new issue. See Mason, 130 A.3d at

621 n.19; Rykard, 55 A.3d at 1189 n.8. Accordingly, Appellant is not entitled

to relief on this claim.1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/19

____________________________________________


1    Moreover, as the PCRA court concluded, Appellant did not invoke a
timeliness exception before the PCRA court. “The timeliness exception set
forth in Section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not
know the facts upon which he based his petition and could not have learned
those facts earlier by the exercise of due diligence.” Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015). Here, the fact that Appellant
and the victim were both federal employees was either known at the time of
trial or could have been learned through the exercise of due diligence many
years, even decades, earlier.

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