J-S36026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOHN WILSON,                             :
                                          :
                    Appellant             :   No. 3218 EDA 2017

                Appeal from the PCRA Order August 31, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0743951-1991

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

JUDGMENT ORDER BY DUBOW, J.:                    FILED NOVEMBER 02, 2018

      Appellant, John Wilson, appeals pro se from the August 31, 2017 Order

entered in the Philadelphia County Court of Common Pleas dismissing as

untimely his sixth Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The underlying facts are not relevant to the instant appeal. Briefly, on

April 8, 1992, Appellant entered a negotiated plea to, inter alia, First-Degree

Murder. That same day, the trial court imposed the negotiated sentence of

life imprisonment. Appellant did not file a direct appeal. Appellant’s Judgment

of Sentence thus became final thirty days later on May 8, 1992, upon

expiration of the time to file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S.

§ 9545(b)(3).

      Over the next several decades, Appellant filed five unsuccessful PCRA

Petitions. On June 16, 2016, Appellant filed the instant pro se PCRA Petition,
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his sixth, seeking to invoke Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).1 On

August 31, 2017, the PCRA court dismissed the instant PCRA Petition without

a hearing after providing notice pursuant to Pa.R.Crim.P. 907.2

       Appellant timely filed a pro se Notice of Appeal. The PCRA court did not

order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors. The PCRA

court filed a brief Pa.R.A.P. 1925(a) Opinion with its dismissal Order and

opined that (1) Appellant’s PCRA Petition was untimely, and (2) no timeliness

exception applied since Appellant was ineligible for relief under Miller and

Montgomery because he “was over the age of eighteen at the time of his

offense.” PCRA Court Opinion, filed 8/31/17, at 1.

       Appellant presents one issue for our review:

       Whether Appellant is entitled to Post Conviction Relief based on
       newly discovered evidence regarding Brain Science and Social
       Science?

Appellant’s Brief at 3 (suggested answer omitted).



____________________________________________


1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. The United States Supreme Court held in Montgomery
that its decision in Miller applies retroactively.

2 Appellant alternatively titled his filing as a “Petition for Habeas Corpus
Relief.” The PCRA court properly treated Appellant’s filing as a PCRA Petition.
See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (holding
that “a defendant cannot escape the PCRA time-bar by titling his petition or
motion as a writ of habeas corpus.”).

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      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

      Before addressing the merits of Appellant’s PCRA claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional requisite).

      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. § 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. § 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. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Appellant’s Judgment of Sentence became final on May 8, 1992,

when his time for filing a direct appeal expired. See Pa.R.A.P. 903(a); 42

Pa.C.S. § 9545(b)(3). The instant Petition, filed more than 24 years after his

Judgment of Sentence became final, is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the petitioner pleads and proves one of the three exceptions set forth in 42


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Pa.C.S. § 9545(b). Here, in citing the “brain science” studies discussed in

Miller and Montgomery, Appellant attempts to invoke the timeliness

exception under Section 9545(b)(1)(ii), which provides that a petitioner may

seek relief when “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[.]” 42 Pa.C.S. § 9545(b)(1)(ii).

      Our Supreme Court has expressly held that “subsequent decisional law

does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii)[.]”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Further, Appellant’s

reliance on the “brain science” studies discussed in Miller and Montgomery

as the “newly discovered fact” garners no relief. Those studies were published

years before the judicial decision. Appellant failed to prove that he filed the

instant Petition within 60 days of the publication of that research discussed in

Miller and Montgomery, and does not successfully demonstrate why he

could not have discovered these facts any earlier when they were available.

      Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely.       See

PCRA Court Opinion at 1.

      The record supports the PCRA court’s findings and its Order is otherwise

free of legal error. Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/18




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