J-E03002-18



                                   2019 PA Super 64

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AVIS LEE                                   :
                                               :
                       Appellant               :   No. 1891 WDA 2016

                Appeal from the PCRA Order November 17, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0005128-1980


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

OPINION BY LAZARUS, J.:                                 FILED MARCH 01, 2019

       Avis Lee appeals from the order dismissing, as untimely, her sixth

petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. The issue before this en banc Court is whether, following the

United States Supreme Court’s decision in Montgomery v. Louisiana, 136

S. Ct. 718 (2016), Lee, who was over the age of 18 at the time of the

commission of her offense, may invoke the decision in Miller v. Alabama,

567 U.S. 460 (2012), as an exception to the timeliness requirements of the

PCRA. After our review of the parties’ arguments, as well as the amicus brief

in support of Lee,1 we conclude that she cannot invoke Miller to overcome

____________________________________________


1 The Juvenile Law Center, the Defender Association of Philadelphia, the
Atlantic Center for Capital Representation, and the Youth Sentencing and
Reentry Project have filed a joint amicus brief in support of Lee.
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the PCRA time-bar and, therefore, the PCRA court correctly determined it did

not have jurisdiction. Accordingly, we are constrained to affirm.

       In 1981, a jury convicted Lee of second-degree murder. The convictions

stemmed from the shooting death of Robert Walker during an attempted

robbery. The evidence at trial established that Lee suggested the robbery to

her brother, Dale Stacy Madden, that Lee was designated to serve as the

lookout, and that Lee was aware that her brother was carrying a loaded gun.

Lee was tried jointly with co-defendants Madden and another man, co-

conspirator Arthur Jeffries.

       Following conviction, the court properly sentenced Lee to a mandatory

life sentence without the possibility of parole. On appeal, this Court affirmed

her judgment of sentence. See Commonwealth v. Lee, 838 PGH 1981, (Pa.

Super. filed July 16, 1982) (unpublished memorandum).             Over the past

twenty-two years, Lee has unsuccessfully sought state post-conviction relief

and habeas corpus relief in the federal courts.

       In 2012, the United States Supreme Court decided Miller, supra, which

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

the time of their crimes violate the Eighth Amendment’s prohibition on “cruel

and unusual punishments.” Miller, 567 U.S. at 465.2 The Supreme Court

____________________________________________


2 Juveniles tried as adults remain subject to mandatory minimum sentencing
statutes applicable to their adult counterparts, except for the imposition of life
imprisonment without parole. See 42 Pa.C.S.A. § 6355(a); 18 Pa.C.S.A. §
1102.1(a), (c) (providing for shorter minimum terms of imprisonment than



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held that a juvenile homicide defendant could only be sentenced to life without

the possibility of parole if he or she is determined to be permanently

incorrigible, irreparably corrupt, or irretrievably depraved. Miller, 567 U.S. at

471. Thereafter, in Montgomery, the Court held that Miller applies

retroactively to cases on collateral review, opening the door for those eligible

to seek collateral relief. Montgomery, 136 S. Ct. at 732-37.

       On   March     24,   2016,     fifty-nine   days   after   the   Court   decided

Montgomery, Lee filed her sixth PCRA petition, asserting she was a “virtual

minor” at the time of her crime and was therefore entitled to the benefit of

the constitutional rule announced in Miller and made retroactive by

Montgomery. She claimed the sentencing court in her case “did not have

the ability to consider the mitigating qualities of [her] youth during

sentencing[.]”      Amended PCRA Petition, 3/24/16, at 13. Lee argued,

therefore, that the rationale underlying the Miller holding, including

consideration of characteristics of youth and age-related facts identified as

constitutionally significant by the Miller Court, provides support for extending

the benefit of Miller to her case.


____________________________________________


those mandated in section 1102 where the murders of the first and second
degree were committed by juveniles). See also Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) (Batts II) (in absence of sentencing court reaching
conclusion, supported by competent evidence, that juvenile murderer will
forever be incorrigible, without any hope for rehabilitation, life-without-parole
sentence imposed on juvenile is illegal under Eighth Amendment prohibition
against cruel and unusual punishment).


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       The PCRA court found Miller inapplicable because Lee was not under

the age of 18 at the time of her crime. Lee was born on January 23, 1961;

on November 2, 1979, when the crime occurred, she was 18 years and nine

months old. Finding Lee had failed to prove the applicability of the newly-

recognized constitutional right exception to the PCRA time-bar under section

9545(b)(1)(iii), the PCRA court dismissed her petition as untimely.

       On appeal, a panel of this Court affirmed. The decision of our Court in

this case, bound by precedent on this issue, rejected the “virtual-minor

theory” as a basis to invoke section 9545(b)(1)(iii), concluding Lee could not

rely on Miller to bring herself within the new constitutional right exception.

See 42 Pa.C.S.A. § 9545(b)(1)(iii); see also Commonwealth v. Furgess,

149 A.3d 90, 91–94 (Pa. Super. 2016) (holding 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 newly-recognized constitutional right);

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), abrogation

on other grounds recognized in Furgess, supra at 94 (concluding contention

that newly-recognized constitutional right should be extended to others does

not render petition timely pursuant to section 9545(b)(1)(iii)).3

____________________________________________


3 In Cintora, the co-appellants, who were 19 and 21 years old at the time of
their crimes, argued that Miller applied to them because a human brain does
not fully develop until the age of 25 and because “it would be a violation of
equal protection for the courts to treat them[,] or anyone else with immature



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       On March 9, 2018, this Court granted Lee’s petition for reargument en

banc to address the issue of whether Miller should apply to those who ground

their claims on the Miller rationale -- the “immature brain” theory -- despite

Miller’s express age limitation. Lee contends that the express age of legal

maturity is “arbitrary” and was not central to the Miller rationale, which, in

sum, concerns whether the commission of a crime “reflects unfortunate yet

transient    immaturity”     of   a   young    offender   rather   than   “irreparable

corruption[.]” Miller, 567 U.S. at 479-80 (quoting Roper v. Simmons, 543

U.S. 551, 573 (2005)). Lee cites to Seminole Tribe of Florida v. Florida,

517 U.S. 44, 67 (1996), and Commonwealth v. Batts, 163 A.3d 410 (Pa.

2017) (“Batts II”), to support her argument that the rationale of Miller

should extend the Miller holding to her.           Lee further urges this Court to

____________________________________________


brains, as adults.” Cintora, 69 A.3d at 764. The Cintora Court rejected these
arguments, stressing that the co-appellants’ “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. (emphasis in
original). The Furgess Court acknowledged, however, that Cintora's
additional holding, that Miller had not been applied retroactively, was “no
longer good law” after Montgomery. See Furgess, 149 A.3d at 94
(“Because the U.S. Supreme Court in Montgomery has since held that Miller
does apply retroactively, this second reason stated in the Cintora opinion is
no longer good law. However, nothing in Montgomery undermines Cintora's
holding that petitioners who were older than 18 at the time they committed
murder are not within the ambit of the Miller decision, and, therefore may
not rely on that decision to bring themselves within the time-bar exception in
Section 9545(b)(1)(iii).”).




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reexamine our prior decisions in Cintora and Furgess in light of Eighth

Amendment sentencing jurisprudence espoused in Miller. For the reasons

that follow, and despite Lee’s compelling arguments, we reaffirm our

conclusion that Miller does not afford collateral relief to a petitioner who was

over the age of 18 at the time of his or her offense. We also hold that the

rationale the Miller Court applied to offenders who were age 14 at the time

of their offenses, cannot be applied to defendants over the age of 18 at the

time of their offenses in order to satisfy the newly-recognized constitutional

right exception to the PCRA time-bar.

       Initially, we note that this Court granted reargument en banc in this

case on March 9, 2018.4 Five days later, on March 14, 2018, this Court filed


____________________________________________


4 Lee’s petition for reargument sought review of the following claims that
she had brought forth in her PCRA petition:

       (1) Mandatory        life-without-parole   sentence     constitutes
       disproportionate punishment in violation of the Eighth
       Amendment to the U.S. Constitution because she was
       developmentally an adolescent and possessed the age -related
       characteristics of youth that must be taken into consideration prior
       to imposing a sentence of life-without-parole pursuant to Miller,
       thus the right established in Miller applies to Ms. Lee, her PCRA
       petition meets the newly-established constitutional right
       exception to the PCRA's timeliness requirements;

       (2) Disproportionate punishment in violation of the Eighth
       Amendment because she did not kill or intend to kill, which
       rendered her of diminished culpability for purposes of imposing a
       sentence of life-without-parole, as Miller incorporated the U.S.
       Supreme Court's proportionality jurisprudence;



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its decision in Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super.

2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018).

       In Commonwealth v. Montgomery,5 petitioner, who was 22 years old

at the time he committed murder, for which he was sentenced to life

imprisonment without the possibility of parole, argued that his brain was not

fully developed. Petitioner contended that he satisfied the new constitutional

rule exception to the PCRA time-bar because he was entitled to relief under

Miller, made retroactive by Montgomery.          We disagreed, holding that

petitioner failed to show that the new constitutional rule extended to

individuals who had committed homicides after they reached the age of 18.

Commonwealth v. Montgomery, 181 A.3d at 366. Relying on Furgess and

Cintora, this Court held that simply contending that a newly-recognized

constitutional right should be extended to others does not satisfy the new
____________________________________________


       (3) Combined effect of Ms. Lee's youth and developmental
       characteristics, her experience of extreme childhood and
       adolescent abuse and trauma, and her lack of intent to kill render
       her life-without-parole sentence unconstitutional in violation of
       the Eighth Amendment;

       (4) A violation of the Equal Protection Clause of the Fourteenth
       Amendment to the U.S. Constitution and Article 1, § 26 of the
       Pennsylvania Constitution because the arbitrary discrepancy in
       sentencing between 17- and 18-year-olds under Pennsylvania law
       lacks a rational basis.

Petition for Reargument, 1/12/18, at 2-5.

5 For purposes of this Opinion, we refer to our decision as Commonwealth
v. Montgomery in order to differentiate it from the United States Supreme
Court’s decision in Montgomery v. Louisiana.

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constitutional    rule   exception     to      the   PCRA’s   timeliness   requirement.

Commonwealth v. Montgomery, 181 A.3d at 366 (citing Furgess, 149

A.3d at 94, and Cintora, 69 A.3d at 764). We also found meritless petitioner’s

argument that Furgess was distinguishable. We stated:

       [Petitioner] argues that Furgess is distinguishable from the case
       at bar because in Furgess the petitioner only raised a claim under
       the Eighth Amendment while he also raises a claim under the
       Fourteenth Amendment’s Equal Protection Clause.               This
       argument, however, is misplaced. Neither the Supreme Court of
       the United States nor our Supreme Court has held that Miller
       announced a new rule under the Equal Protection Clause. Instead,
       Miller only announced a new rule with respect to the Eighth
       Amendment. Thus, contrary to [petitioner’s] assertion, his Equal
       Protection Clause argument is also an attempt to extend Miller's
       holding.

Commonwealth v. Montgomery, 181 A.3d at 366 (emphasis added).6

Notably, we declined petitioner’s invitation to overturn Furgess, stating that

“the three-judge panel’s analysis is correct[.]” Id. at 367.

       On the same day this Court filed its decision in Commonwealth v.

Montgomery, the Commonwealth filed a motion for clarification of the order

granting en banc review in light of that decision. The Commonwealth averred:

“[T]this Court rejected Montgomery’s attempt to extend the holding in Miller

to those who were 18 years of age or older when they committed their crimes

under the Eighth Amendment and the Equal Protection Clause of the

____________________________________________


6In light of Commonwealth v. Montgomery, Lee has affirmatively waived
her claim relating to the Equal Protection Clause of the Fourteenth
Amendment. See Appellant’s Substituted Brief, at 4 n.1.


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Fourteenth Amendment.”            Motion for Clarification, 3/14/18, at ¶ 3. In

response, Lee averred that her “rationale versus specific holding” argument

renders the right established in Miller applicable to her, and that “the ‘right’

established in Miller cannot be limited to the narrow ‘holding’ identified by

this Court in Com[monwealth] v. Montgomery, Cintora, and Furgess.”

Answer to Motion for Clarification, 4/12/18, at ¶¶ 10-18, 29.7 By order dated

April 25, 2018, this Court denied the Commonwealth’s application for

clarification.   In her substituted brief on en banc review, Lee presents her

claims as follows:


       I.     Did the PCRA court err in rejecting [Lee’s] claim that the
              right established in Miller v. Alabama applies to petitioner
              who possessed those characteristics of youth identified as
              constitutionally significant for sentencing purposes by the
              U.S. Supreme Court?

       II.    Did the PCRA court abuse its discretion in failing to hold an
              evidentiary hearing where petitioner had raised issues of
              material fact that entitle her to relief?

Appellant’s Substituted Brief, at 4.

       When reviewing the denial of a PCRA petition, we must determine

whether the PCRA court’s order is supported by the record and free of legal

____________________________________________


7  Lee also suggested that this Court is not bound by our decision in
Commonwealth v. Montgomery, “as an en banc court has the authority to
overrule the holding of another en banc court.” Answer to Motion for
Clarification, supra at ¶ 39. While that may be true, we do not find that there
is any compelling reason to overturn prior Superior Court precedent in this
matter; to the contrary, we find ample precedent provided by both the United
States Supreme Court and our Pennsylvania Supreme Court that is binding
upon this Court. This argument provides Lee no relief.

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error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).

Generally, we are bound by a PCRA court’s credibility determinations.

However, with regard to a court’s legal conclusions, we apply a de novo

standard. Id. However, we first address the timeliness of Lee’s petition, as

timeliness is a jurisdictional requisite and may not be altered or disregarded

in order to address the merits of a petition.               See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007); see also Commonwealth v.

Zeigler, 148 A.3d 849 (Pa. Super. 2016).

       A PCRA petition, including a second or subsequent petition, shall be filed

within one year of the date the underlying judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at

the conclusion of direct review, including discretionary review in the United

States Supreme Court and the Pennsylvania Supreme Court, or upon

expiration of the time for seeking review.          42 Pa.C.S.A. § 9545(b)(3). Three

statutory exceptions to the PCRA time-bar allow for limited circumstances to

excuse the late filing of a petition.          42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).   A

petitioner asserting a timeliness exception must file a petition within 60 days

of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). 8
____________________________________________


8 On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section, December
24, 2017, or thereafter.



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“As such, when a PCRA petition is not filed within one year of the expiration

of direct review, or not eligible for one of the three limited exceptions, or

entitled to one of the exceptions, but not filed within 60 days of the date that

the claim could have been first brought, the [PCRA] court has no power to

address    the    substantive   merits    of   a   petitioner’s   PCRA      claims.”

Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).

      Here, the court imposed Lee’s sentence in 1981; Lee filed the instant

petition on March 24, 2016, thirty-five years later.        See 42 Pa.C.S.A. §

9545(b)(1).      Lee’s petition is patently untimely.   Accordingly, we cannot

address the merits of Lee’s petition unless she meets one of the enumerated

exceptions to the time-bar set forth in section 9545(b)(1)(i)-(iii):

      (b) Time for filing petition.--

      (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:

          (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 law 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

          (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.



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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Because the United States Supreme Court’s decision in Montgomery

established that Miller applies retroactively, and because Lee filed her petition

within 60 days of the Montgomery ruling, she has ostensibly satisfied the

requirements of section 9545(b)(1)(iii) and(2). The critical issue before us is

whether, at this time, Lee can avail herself of the Miller rationale, despite the

express age limitation. Lee asks this Court to expand the holding in Miller to

apply to her, as one over the age of 18 at the time of her offense who alleges

“characteristics of youth” that render her categorically less culpable under

Miller.    Miller, 567 U.S. at 472-73.         Lee characterizes this argument as

“rationale versus holding.”        She argues that Miller must be construed to

include not only the narrow holding identified in Cintora and Furgess, and

more recently, this Court’s en banc decision in Commonwealth v.

Montgomery, but also the underlying reasoning, scientific principles, and

well-established rationale upon which the Court in Miller and Montgomery

relied.9
____________________________________________


9 The bases of Miller’s categorical prohibition on imposing mandatory life-
without-parole sentences on juvenile offenders include: 1) the Court’s
governing rules of law with respect to Eighth Amendment sentencing
jurisprudence, which bar the harshest punishments for classes of offenders
with categorically diminished culpability and require individualized sentencing
when imposing the harshest punishments; 2) Miller’s legal conclusions that
the “characteristics of youth, and the way they weaken rationales for
punishment, can render a life-without-parole sentence disproportionate,” and
that a mandatory life-without-parole sentencing scheme “poses too great a
risk of disproportionate punishment” by precluding a sentencer from



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       Further, Lee contends Montgomery is instructive in determining which

portions of Miller were “necessary” to the result and therefore encompassed

within its ambit.     She claims Montgomery eschewed a narrow reading of

Miller and recognized that the “foundation stone” for Miller’s analysis was

the Court’s line of precedent holding certain punishments disproportionate

when applied to juveniles. Miller, 567 U.S. at 470 n.4.10      See 42 Pa.C.S.A.

§ 6302 (defining “child” as an individual who is under the age of 18 years).
____________________________________________


considering an offender’s age and characteristics of youth prior to imposing
the harshest punishments; and 3) science and social science relating to
adolescent development. Miller, 567 U.S. at 471-79.

10In response to Miller, our General Assembly enacted 18 Pa.C.S.A. § 1102.1
See 2012 P.L. 1655. Section 102.1 provides:

       § 1102.1. Sentence of persons under the age of 18 for
       murder, murder of an unborn child and murder of a law
       enforcement officer

       (a) First[-]degree murder.--A person who has been convicted
       after June 24, 2012, of a murder of the first degree, first[-]degree
       murder of an unborn child or murder of a law enforcement officer
       of the first degree and who was under the age of 18 at the time
       of the commission of the offense shall be sentenced as follows:

          (1) A person who at the time of the commission of the
          offense was 15 years of age or older shall be sentenced to
          a term of life imprisonment without parole, or a term of
          imprisonment, the minimum of which shall be at least 35
          years to life.

          (2) A person who at the time of the commission of the
          offense was under 15 years of age shall be sentenced to a
          term of life imprisonment without parole, or a term of
          imprisonment, the minimum of which shall be at least 25
          years to life.



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____________________________________________


       (b) Notice.--Reasonable notice to the defendant of the
       Commonwealth’s intention to seek a sentence of life imprisonment
       without parole under subsection (a) shall be provided after
       conviction and before sentencing.

       (c) Second[-]degree murder.--A person who has been convicted
       after June 24, 2012, of a murder of the second degree, second[-]
       degree murder of an unborn child or murder of a law enforcement
       officer of the second degree and who was under the age of 18 at
       the time of the commission of the offense shall be sentenced as
       follows:

          (1) A person who at the time of the commission of the
          offense was 15 years of age or older shall be sentenced to
          a term of imprisonment the minimum of which shall be at
          least 30 years to life.

          (2) A person who at the time of the commission of the
          offense was under 15 years of age shall be sentenced to a
          term of imprisonment the minimum of which shall be at
          least 20 years to life.

       (d) Findings.--In determining whether to impose a
       sentence of life without parole under subsection (a), the
       court shall consider and make findings on the record
       regarding the following:

          (1) The impact of the offense on each victim, including oral
          and written victim impact statements made or submitted by
          family members of the victim detailing the physical,
          psychological and economic effects of the crime on the
          victim and the victim’s family. A victim impact statement
          may include comment on the sentence of the defendant.

          (2) The impact of the offense on the community.

          (3) The threat to the safety of the public or any individual
          posed by the defendant.

          (4) The nature and circumstances of the offense committed
          by the defendant.

          (5) The degree of the defendant’s culpability.



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____________________________________________


          (6) Guidelines for sentencing and resentencing adopted by
          the Pennsylvania Commission on Sentencing.

          (7) Age-related characteristics of the defendant, including:

              (i) Age.

              (ii) Mental capacity.

              (iii) Maturity.

              (iv) The degree of criminal sophistication exhibited by the
              defendant.

              (v) The nature and extent of any prior delinquent or
              criminal history, including the success or failure of any
              previous attempts by the court to rehabilitate the
              defendant.

              (vi) Probation or institutional reports.

              (vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1 (emphasis added). Under the current statutory
framework, a juvenile who commits first- or second-degree murder must be
charged as an adult. A defendant can then request that his or her case be
transferred to the Juvenile Division. See 42 Pa.C.S.A. § 6355. If the trial
court denies the transfer request, and the juvenile is convicted of first- or
second-degree murder, the trial court must sentence the juvenile to a
maximum term of life imprisonment. Moreover, the mandatory minimum
sentences set forth above apply only to juveniles convicted of first- or second-
degree murder after June 24, 2012. Section 1102.1 does not prescribe
minimum sentences for juvenile homicide defendants who were convicted of
first- or second-degree murder before June 24, 2012. 18 Pa.C.S.A. § 1102.1.
See Commonwealth v. Foust, 180 A.3d 416, 428 (Pa. Super. 2018). See
also Rachael F. Eisenberg, As Though They Are Children:                Replacing
Mandatory Minimums with Individualized Sentencing Determinations for
Juveniles in Pennsylvania Criminal Court after Miller v. Alabama, 86
Temp.L.Rev. 15 (2013) (suggesting Pennsylvania’s legislative response to
Miller is inadequate, proposing unique sentencing model for juveniles that
prohibits application of mandatory minimum sentencing statutes, and
concluding that Miller “stands for more than its holding[,] in that it prohibits
state sentencing schemes that prevent[] those meting out punishment from
considering a juvenile’s lessened culpability and greater capacity for change,



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       In Furgess, petitioner sought to extend Miller to those adults whose

brains were not fully developed at the time of their offense.         See Furgess,

149 A.3d at 94.       This argument failed.        Reiterating Miller only applies to

defendants who were “under the age of 18 at the time of their crimes[,]”

Furgess, 149 A.3d at 94, we stated: “[A] contention that a newly-recognized

constitutional right should be extended to others does not [satisfy the new

constitutional rule exception to the PCRA’s timeliness requirement.]” Id. at

95 (internal alteration omitted; emphasis removed), quoting Cintora, 69 A.3d

at 764.

       Miller says nothing about defendants who were 18 years old or older at

the time of the commission of their crimes.            The Miller Court applied the

scientific studies and principles set forth in Roper v. Simmons, 543 U.S. 551

(2005), and Graham v. Florida, 560 U.S. 48 (2010), and concluded the

prohibition against mandatory life sentences pertained to juveniles, in

particular, in the case of Miller, to two fourteen year olds. The Miller Court

noted the difficulty in distinguishing “at this early age between ‘the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the

rare juvenile offender whose crime reflects irreparable corruption.’” Miller,

____________________________________________


and run[] afoul of our cases’ requirement of individual sentencing for
defendants facing the most serious penalties.” Id. at 242-43, quoting Miller,
567 U.S. at 465 (internal quotation marks omitted)).




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567 U.S. at 479, citing Roper, 543 U.S. at 573, and Graham, 560 U.S. at 68.

The Court reasoned:      “By making youth (and all that accompanies it)

irrelevant to imposition of that harshest prison sentence, such a scheme poses

too great a risk of disproportionate punishment.” Miller, 567 U.S. at 479.

The Miller rationale underscored three factors: “characteristics of youth,”

“disproportionate punishment,” and “science and social science relating to

adolescent development.” Id. at 473-489.

      Lee cites to “immature brain” studies that would establish that her brain

was underdeveloped at the time of her crime, and that she could not form the

requisite intent for second-degree murder. Miller, she argues, prohibits the

mandatory imposition of life without parole sentences upon offenders who

possess “characteristics of youth” that render them categorically less culpable

under the Eighth Amendment. Thus, Lee submits, the Miller rationale applies

to her case and, accordingly, provides an exception to the PCRA time-bar.

See 42 Pa.C.S.A. § 9545(b)(2)(iii).

      There is no question the scientific studies and principles underlying

Miller informed its holding. Our Supreme Court, in Batts II, reviewed Miller,

Roper and Graham, and discussed those principles at length. The express

age limit, however, though arguably not critical to the Miller holding, is, in

our opinion, essential to an orderly and practical application of the law.

Conceptually, there may not be any statistically significant difference between

the mental maturity of a 17-year-old and an 18-year-old, or an 18-year-old

and a 19-year-old, and so the question becomes, where do we draw the line?

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      Drawing the line at 18 years of age is subject, of course, to the
      objections always raised against categorical rules. The qualities
      that distinguish juveniles from adults do not disappear when an
      individual turns 18. By the same token, some under 18 have
      already attained a level of maturity some adults will never reach.
      [H]owever, a line must be drawn. . . . The age of 18 is the point
      where society draws the line for many purposes between
      childhood and adulthood. It is, we conclude, the age at which the
      line for death eligibility ought to rest.

Roper v. Simmons, 543 U.S. at 574 (holding Eighth Amendment to United

States Constitution prohibits imposition of death penalty for crime committed

by juvenile).

      We recognize that the principles underlying the Miller holding are more

general; who qualifies as a “juvenile” and whether Miller applies to Lee are

better characterized as questions on the merits, not as preliminary

jurisdictional questions under section 9545(b)(1)(iii). As compelling as the

“rationale” argument is, 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).

      In Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), this

Court addressed an analogous claim. There, Chambers filed an untimely PCRA

petition and sought to establish that he had satisfied the exception contained

in section 9545(b)(1)(iii) by arguing that the rationale utilized by the United

States Supreme Court establishing a new constitutional right in Graham,

supra, entitled him to relief.   The Graham Court held unconstitutional a

sentence of life imprisonment without parole for a non-homicide juvenile



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offender, emphasizing the inherent immaturity and impetuousness of

juveniles, and noting that “developments in psychology and brain science

continue to show fundamental differences between juvenile and adult minds.”

Graham, 560 U.S. at 68.

     Chambers argued that the rationale of Graham should be extended to

apply to a juvenile sentenced to life in prison for a second-degree murder

conviction. The Commonwealth argued that Chambers was not entitled to

relief because Graham only applies to juveniles convicted of non-homicide

offenses, and Chambers was convicted of second-degree murder.

     Concluding Chambers misapprehended the scope of the timeliness

exception embodied in § 9545(b)(1)(iii), we stated:

     For purposes of deciding whether the timeliness exception to the
     PCRA based on the creation of a new constitutional right is
     applicable, the distinction between the holding of a case and its
     rationale is crucial since only a precise creation of a constitutional
     right can afford a petitioner relief. . . . [T]he rationale used by the
     Supreme Court is irrelevant to the evaluation of a § 9545(b)(1)(iii)
     timeliness exception to the PCRA, as the right must be one that
     has been expressly recognized by either the Pennsylvania or
     United States Supreme Court. Thus, for the purpose of the
     timeliness exception to the PCRA, only the holding of the case is
     relevant.

Chambers, 35 A.3d at 40-43 (emphasis added). Here, as in Chambers, Lee

is not basing her argument on any newly-recognized constitutional right as

contemplated by the PCRA.        For this reason, we find Lee’s reliance on

Seminole Tribe, supra, for the principle that stare decisis directs courts to

adhere not only to holdings of prior cases, but also to explications of the


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governing rules of law, is misplaced. “While rationales that support holdings

are used by courts to recognize new rights, this judicial tool is not available to

PCRA petitioners.”      Chambers, supra at 42.          See also Seminole Tribe,

supra at 67 (“When an opinion issues for the Court, it is not only the result

but also those portions of the opinion necessary to that result by which we are

bound.”).     Simply put, that principle is not applicable in the context of

collateral review. Further, we do not find Lee’s reliance on Batts II compels

a different result. Batts II, which involved a defendant who was 14 years old

at the time of his offenses, was on direct appeal.

       It is not this Court’s role to override the gatekeeping function of the

PCRA time-bar and create jurisdiction where it does not exist. The PCRA’s

time limitations “are mandatory and interpreted literally; thus, a court has no

authority    to   extend    filing   periods   except   as   the   statute   permits.”

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).                   The period for

filing a PCRA petition “is not subject to the doctrine of equitable tolling.” Id.

       We recognize the vast expert research on this issue. If this matter were

one of first impression and on direct appeal, we might expound differently.

However, we are an error-correcting court. Until the United States Supreme

Court or the Pennsylvania Supreme Court recognizes a new constitutional right

in a non-juvenile offender, we are bound by precedent.11 We conclude, as we

did in Commonwealth v. Montgomery, Furgess and Cintora, that age is
____________________________________________


11 We would urge our Supreme Court to review this issue in light of the
research available even since Batts II was decided in 2017.

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the sole factor in determining whether Miller applies to overcome the PCRA

time-bar and we decline to extend its categorical holding.

      Because Lee has failed to successfully plead or prove that she meets the

new constitutional right exception to the timeliness requirements of the PCRA,

42 Pa.C.S.A. § 9545(b)(2)(iii), the court properly concluded that Lee’s petition

was untimely and it had no jurisdiction to address its merits. We affirm the

PCRA court’s order.

      Order affirmed.

      President Judge Gantman, President Judge Emeritus Bender, Judge

Bowes, Judge Panella, Judge Ott, Judge Dubow and Judge Murray join in this

Opinion.

      Judge Stabile concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2019




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