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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
EDWARD WALLS,                             :        No. 2001 WDA 2013
                                          :
                          Appellant       :


                Appeal from the PCRA Order, December 11, 2013
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0008331-1996


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 10, 2014

        Edward Walls appeals from the order of December 11, 2013,

dismissing his serial PCRA1 petition. We affirm.

        On March 6, 1997, following a jury trial, appellant was found guilty of

one count of criminal homicide, two counts of criminal attempt, two counts

of aggravated assault, two counts of criminal conspiracy, one count of

receiving stolen property, and one count of violating the Uniform Firearms

Act. The charges related to a May 25, 1996 drive-by shooting in which the

victim, Torie Jones, sustained a fatal gunshot wound to the head. Appellant,

who was 15 years old at the time of the incident, was sentenced to the




* Retired Senior Judge assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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mandatory term of life imprisonment without the possibility of parole on the

criminal homicide charge, and an aggregate of 10 years, 9 months to

45 years’ imprisonment on the remaining counts.

      On August 11, 1999, this court affirmed the judgment of sentence.

Commonwealth          v.   Walls,   1121     Pittsburgh    1997,    unpublished

memorandum (Pa.Super. filed August 11, 1999).          Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

Appellant filed two PCRA petitions which were dismissed.            The instant

petition, his third, was filed on July 5, 2012.       In his petition, appellant

alleged that the after-recognized constitutional right exception to the PCRA’s

one-year statutory time-bar applied, invoking the United States Supreme

Court’s June 2012 decision in Miller v. Alabama,            U.S.    , 132 S.Ct.

2455, 2469 (2012) (holding that mandatory life-without-parole sentences,

as applied to those under age 18, offend the Eighth Amendment’s prohibition

against cruel and unusual punishment by preventing sentencing authorities

from considering juveniles’ “diminished culpability and heightened capacity

for change”).

      Counsel was appointed, and he filed a motion for stay pending the

outcome    of   our   supreme   court’s    decision   in   Commonwealth       v.

Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied,             U.S.     , 134 S.Ct.

2724 (U.S.Pa. Jun. 09, 2014).       The motion for stay was granted.         On

October 30, 2013, Cunningham was handed down, wherein our supreme



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court determined that Miller did not apply retroactively to cases on

collateral appeal. On December 11, 2013, following appropriate Rule 9072

notice, appellant’s petition was dismissed.       This timely appeal followed.

Appellant complied with Pa.R.A.P. 1925(b), and the PCRA court filed an

opinion.

        Appellant has raised the following issues for this court’s review:

              I.    Whether the United States Supreme Court
                    decision in Miller v. Alabama applies
                    retroactively on collateral review under either
                    federal    law   or    broader   principles  of
                    retroactivity under state law[?] And, whether
                    the appellant’s PCRA petition raising these
                    claims therefore was timely under the
                    [PCRA][?]

              II.   Whether a mandatory juvenile sentence of life
                    without parole violates Article 1, §§ 1, 9 and
                    13 of the Pennsylvania Constitution and the
                    Eighth and Fourteenth Amendments to the
                    United States Constitution, where two classes
                    of prisoners sentenced to life without parole
                    are treated differently and where their
                    respective sentences are disproportionate[?]

Appellant’s brief at 4.

              “The PCRA’s time restrictions are jurisdictional in
              nature.    Thus, [i]f a PCRA petition is untimely,
              neither this Court nor the trial court has jurisdiction
              over the petition. Without jurisdiction, we simply do
              not have the legal authority to address the
              substantive claims.” Commonwealth v. Albrecht,
              606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
              Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
              520, 522 (2006)). Statutory time limitations “are
              mandatory and interpreted literally; thus, a court has

2
    Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.


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          no authority to extend filing periods except as the
          statute permits.” [Commonwealth v.] Fahy, 737
          A.2d [214] at 222 [Pa. 1999].

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).

                 In   Commonwealth        v.   Jackson,    we
          articulated the timeliness standards under the PCRA
          as follows:

               The PCRA “provides for an action by
               which persons convicted of crimes they
               did not commit and persons serving
               illegal sentences may obtain collateral
               relief.” 42 Pa.C.S.A. § 9542. When an
               action is cognizable under the PCRA, the
               PCRA is the “sole means of obtaining
               collateral relief and encompasses all
               other common law and statutory
               remedies for the same purpose[.]”
               42 Pa.C.S.A. § 9542.

               In order for a court to entertain a PCRA
               petition, a petitioner must comply with
               the    PCRA    filing  deadline.      See
               Commonwealth v. Robinson, 575 Pa.
               500, 837 A.2d 1157, 1161 (2003). The
               time for filing a petition is set forth in
               42 Pa.C.S.A. § 9545(b), which provides
               in relevant part:

               (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


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                        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

                        (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).

               “[T]he time limitations pursuant to . . .
               the PCRA are jurisdictional.” [Fahy, 737
               A.2d at 222].        “[Jurisdictional time]
               limitations     are      mandatory      and
               interpreted literally; thus, a court has no
               authority to extend filing periods except
               as the statute permits.” Id. “If the
               petition is determined to be untimely,
               and no exception has been pled and
               proven, the petition must be dismissed
               without a hearing because Pennsylvania


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                    courts are without jurisdiction to consider
                    the     merits    of      the     petition.”
                    Commonwealth v. Perrin, 947 A.2d
                    1284, 1285 (Pa.Super.2008).

              Commonwealth v. Jackson, 30 A.3d 516, 518-19
              (Pa.Super.2011).

Id. at 242.

      Appellant’s judgment of sentence became final on September 10,

1999, thirty days after this court affirmed the judgment of sentence and the

time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. Commonwealth v. Rojas, 874 A.2d 638, 643-644

(Pa.Super. 2005); Pa.R.A.P. 1113(a). Thus, the instant petition, filed July 5,

2012, is facially untimely.

      Appellant attempted to invoke the after-recognized constitutional right

exception     to   the   PCRA’s   time-bar   under   Subsection    9545(b)(1)(iii),

predicated upon the United States Supreme Court’s decision in Miller.

However, in Cunningham, our supreme court held that the constitutional

right announced by the court in Miller does not apply retroactively to

prisoners, such as appellant, whose judgments of sentence were already

final at the time of the Miller decision. Therefore, appellant cannot rely on

Miller or subsection 9545(b)(1)(iii) to establish jurisdiction over his untimely

PCRA petition. Seskey, 86 A.3d at 243.

      Appellant argues that Cunningham was wrongly decided and that

Miller is retroactive on its face.    (Appellant’s brief at 17.)   Appellant sets



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forth other jurisdictions which have found Miller to apply retroactively on

collateral review. (Id. at 15-16.) However, appellant acknowledges that the

United States Supreme Court recently denied certiorari in Cunningham,

and we are bound by our supreme court’s decision.       Commonwealth v.

Shaffer, 734 A.2d 840, 844 n.6 (Pa. 1999) (reminding the Pennsylvania

Superior Court of its duty and obligation to follow the decisional law of the

Pennsylvania Supreme Court).

     Appellant also argues for a broader retroactivity analysis under

Pennsylvania law, claiming that the non-retroactive application of Miller

creates two classes of juvenile offenders in Pennsylvania who are treated

differently based solely on when their convictions became final. (Appellant’s

brief at 24.)   Appellant contends that his mandatory sentence of life

imprisonment without parole is unconstitutional because the creation of two

classes of juvenile offenders, one eligible for relief under Miller and one

ineligible, based solely and arbitrarily on when their convictions became

final, violates the Pennsylvania Constitution’s guarantees of due process and

equal protection.   (Id. at 32.)   Appellant also argues that his sentence

constitutes cruel punishment under Article 1, § 13 of the Pennsylvania

Constitution. (Id. at 27.) This court addressed similar claims in Seskey,

supra:

           Throughout his brief, Appellant attempts to
           circumvent the effect that Cunningham has upon
           our jurisdiction by arguing, inter alia: that he is
           entitled to relief under Article 1, § 13 of the


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            Pennsylvania Constitution (“Excessive bail shall not
            be required, nor excessive fines imposed, nor cruel
            punishments inflicted.”), independently of the Eighth
            Amendment []; that Miller should be applied
            retroactively based upon Pennsylvania’s broader
            retroactivity principles []; and that the inequitable
            result that Miller created violates Pennsylvania’s due
            process and equal protection principles []. While
            these arguments someday may require consideration
            by our courts, today cannot be that day. Before a
            court may address Appellant’s arguments, or similar
            contentions, that court must have jurisdiction. We
            cannot manufacture jurisdiction based upon the
            substantive claims raised by the parties. Presently,
            we are confined by the express terms of subsection
            9545(b)(1)(iii) and our Supreme Court’s decision in
            Cunningham.         Combined, those two elements
            require us to conclude that we lack jurisdiction. No
            substantive claim can overcome this conclusion.

Seskey, 86 A.3d at 243 (citations to the appellant’s brief omitted).    See

also Commonwealth v. Breakiron, 781 A.2d 94, 100-101 (Pa. 2001),

citing Commonwealth v. Murray, 753 A.2d 201, 202 (Pa. 2000) (“[T]he

nature of the constitutional violation alleged in a PCRA petition has no

bearing on the applicability of the PCRA’s timeliness requirements.”). Even

claims of a constitutional dimension are subject to the PCRA’s timeliness

requirements.   Breakiron; Commonwealth v. Kutnyak, 781 A.2d 1259,

1261 (Pa.Super. 2001) (no alternative basis for relief outside the framework

of the PCRA) (citations omitted).

      For these reasons, the PCRA court lacked jurisdiction to consider

appellant’s substantive claims as his third PCRA petition was untimely, with

no applicable exceptions.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




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