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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    v.                     :
                                           :
JIMALL RANDALL,                            :          No. 1947 EDA 2018
                                           :
                         Appellant         :


               Appeal from the PCRA Order Entered June 5, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0740531-1991


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 16, 2019

        Jimall Randall appeals from the June 5, 2018 order dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On March 19, 1992, a jury found appellant

guilty of second-degree murder, robbery, criminal conspiracy, and possessing

instruments of crime1 in connection with the December 30, 1990 shooting

death of Harvey Bryant in Philadelphia.2 On March 22, 1994, appellant was

sentenced to life imprisonment for second-degree murder and a concurrent


1   18 Pa.C.S.A. §§ 2502(b), 3701(1), 903(a), and 907(a), respectively.

2Appellant incorrectly indicates in his brief that this incident occurred in May of
1991, the month he was arrested. (See appellant’s brief at 6.)
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term of 5 to 10 years’ imprisonment for the remaining convictions. No direct

appeal was filed. Appellant filed a pro se PCRA petition on August 15, 2012,

and an amended petition, styled as a petition for writ of habeas corpus, on

May 31, 2017. David Rudenstein, Esq. (“PCRA counsel”), was appointed to

represent appellant and filed an amended petition on his behalf on October 31,

2017. Following the issuance of a Pa.R.Crim.P. 907(1) notice on May 8, 2018,

the PCRA court dismissed appellant’s petition without a hearing on June 5,

2018. This timely appeal followed.

      Appellant raises the following issue for our review:       “Did the PCRA

[c]ourt err when it dismissed [appellant’s] amended PCRA Petition without a

hearing, denying sought-after relief for ‘Juvenile Life’?” (Appellant’s brief at

3.)

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).



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      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment 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.A. § 9545(b)(3).

      Here, the record reveals that appellant’s judgment of sentence became

final on April 21, 1994, 30 days after the time for filing a direct appeal with

this court expired. Accordingly, appellant had until April 21, 1995 to file a

timely PCRA petition. Appellant’s initial petition was filed on August 15, 2012,

over 18 years after his judgment of sentence became final and is patently

untimely, unless appellant can plead and prove that one of the three statutory

exceptions to the one-year jurisdictional time-bar applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

            (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


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            (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).

      To the extent appellant attempts to invoke the new constitutional right

exception based on Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), appellant’s claim fails.

Appellant concedes that he was 18 years old3 at the time he committed the

offenses, but argues that his sentence of life imprisonment is unconstitutional

under Miller and Montgomery because he was “in a transitory phase of

developed adolescent.”     (Appellant’s brief at 6.)   In support of this claim,

appellant cites to a number of scientific studies concluding that the brain is

not fully developed until the mid-twenties, and argues that an undeveloped

brain mitigates his culpability.   (Id. at 7-8.)   Appellant asks this court to

expand the holding in Miller to apply to him, as an individual over the age of

18 at the time of his offense, given his “developing adolescent” nature. (Id.

at 7.) We decline to do so.

      In Miller, the Supreme Court recognized a constitutional right for

juveniles, holding that “mandatory life without parole for those under the age




3The record reflects that appellant was born in October 1972, making him
18 years and 2 months old at the time he committed the offense.


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

against ‘cruel and unusual punishments.’”      Miller, 567 U.S. at 465.     In

Montgomery, the Supreme Court held that its rule announced in Miller

applies retroactively on collateral review. Montgomery, 136 S.Ct. at 736.

      Upon review, we find that appellant’s assertion of incomplete brain

development fails to present either an exception to the PCRA time-bar, or a

basis for PCRA relief.   Appellant’s argument seeks an extension of Miller

beyond the stated limits of its holding. Courts in this Commonwealth have

continually declined to do so. See Commonwealth v. Furgess, 149 A.3d

90, 91-94 (Pa.Super. 2016) (holding that petitioners’ contention that Miller

should be extended to persons over age 18 whose brains were immature at

time of their offenses did not bring petition within exception to time-bar for

petitions asserting a newly recognized constitutional right); Commonwealth

v. Lee,     A.3d      , 2019 WL 986978, at *8 (Pa.Super. 2019) (en banc)

(holding that, “we find it untenable to extend Miller to one who is over the

age of 18 at the time of his or her offense for purposes of satisfying the

newly-recognized constitutional right exception in section 9545(b)(1)(iii).”).4




4 To the extent appellant attempts to invoke this claim in the context of trial
counsel’s purported ineffectiveness (see appellant’s brief at 8), we note that
claims of trial counsel ineffectiveness generally do not operate as an
independent exception to the one-year jurisdictional time-bar of the PCRA.
See Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) (allegations
of ineffective assistance of counsel will not circumvent the timeliness
requirement of the PCRA).


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Accordingly, we discern no error on the part of the PCRA court in dismissing

appellant’s PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/19




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