J-S37037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES E. ARCHER                            :
                                               :
                       Appellant               :   No. 2766 EDA 2017

                    Appeal from the PCRA Order July 26, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1215771-1976


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 02, 2018

        Appellant James E. Archer appeals from the Order entered in the Court

of Common Pleas of Philadelphia County on July 26, 2017, dismissing as

untimely his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 Because this petition is untimely without an applicable exception,

we affirm.

        On May 17, 1977, Appellant was convicted of Second-Degree Murder,

Robbery and Criminal Conspiracy following a jury trial.2 Appellant was over

eighteen years old when he committed the crimes on December 4, 1976, as

the record reveals his date of birth was May 26, 1958. On August 28, 1978,

Appellant was sentenced to a term of life imprisonment with concurrent terms


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
2   18 Pa.C.S.A. §§ 2502, 3701, and 903, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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of five (5) years to ten (10) years in prison for the robbery and conspiracy

convictions. He did not file a direct appeal.

       On October 8, 1992, Appellant filed his first petition for relief under the

former Post Conviction Hearing Act (PCHA),3 and that petition was dismissed

without a hearing by the PCHA court on July 25, 1984. On appeal, a panel of

this   Court     reversed     and     remanded    for   an   evidentiary    hearing.

Commonwealth v. Archer, 501 A.2d 289 (Pa.Super. 1985) (unpublised

memorandum).          Upon remand, new counsel filed a “Turner/Finley”4 letter,

and Appellant’s petition ultimately was dismissed on June 12, 1986.             Two

additional     PCRA     petitions    followed,   both   of   which   were   denied.

Commonwealth v. Archer, 668 A.2d 1185 (Pa.Super. 1995)(unpublished

memorandum), appeal denied, 544 Pa. 652, 676 A.2d 1194 (1996);

Commonwealth v. Archer, 1952 EDA 2000 (Pa.Super. 2001)(unpublished

memorandum).

       On May 23, 2012, Appellant filed the instant PCRA petition, his fourth,

pro se.5 Appellant filed Amended Petitions for Relief on August 23, 2012, and
____________________________________________


3 Effective April 13, 1988, the Pennsylvania Legislature repealed in part and
substantially modified in part the PCHA and renamed it the Post Conviction
Relief Act. Act of April 13, 1988, No. 47 § 3, 1988 Pa.Legis.Serv. 227, 42
Pa.C.S. §§ 9541-9546.
4 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
5 Because Appellant’s judgment of sentence became final prior to the 1995

amendments to the PCRA, which added certain time restrictions, Appellant
was permitted to file a first PCRA petition by January 16, 1997. See
Commonwealth v. Peterkin, 554 Pa. 547, 554-55, 722 A.2d 638, 641



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on August 27, 2014. The PCRA court provided the requisite notice of its intent

to dismiss the instant PCRA petition pursuant to Pa.R.Crim.P. 907 on April 18,

2017, and Appellant filed responses thereto on May 9, 2017, and on May 31,

2017.    On July 26, 2017, the PCRA court entered an order dismissing the

petition as untimely. Appellant filed a timely notice of appeal on August 17,

2017.

        When reviewing the propriety of an order denying PCRA relief, this Court

is limited to a determination of whether the evidence of record supports the

PCRA court’s conclusions and whether its ruling is free of legal error.

Commonwealth v. Robinson, 635 Pa. 592, 605, 139 A.3d 178, 185 (2016).

This Court will not disturb the PCRA court’s findings unless there is no support

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014), appeal denied, 626 Pa. 683, 95 A.3d 277 (2014).

        At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).




____________________________________________


(1998) (holding where conviction became final on or before effective date of
Act, to be timely PCRA petition must be filed within one year of effective date
and must be first petition to be eligible for one-year grace period).

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      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden to plead and prove an applicable statutory exception. If the petition

is untimely and the petitioner has not pled and proven an exception, the

petition must be dismissed without a hearing because Pennsylvania courts are

without jurisdiction to consider the merits of the petition. Commonwealth

v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (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 of sentence 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 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)(1)(i)-(iii).     In addition, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).



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      In this case, Appellant was sentenced on August 28, 1978, and did not

file a direct appeal. As a result, his judgment of sentence became final on

September 27, 1978, upon expiration of the thirty-day period he had to file

his notice of appeal with this Court.      See Pa.R.A.P. 903(c)(3). The 1995

amendments to the PCRA provided for a “transitional, statutory grace period”

of one year, applicable to first petitions, in cases where the judgment of

sentence became final before the January 16, 1996, effective date of the 1995

amendments. Commonwealth v. Baroni, 573 Pa. 589, 827 A.2d 419, 420

n. 1 (2003). Thus, Appellant’s first PCRA petition would have been deemed to

be timely if it had been filed no later than January 16, 1997. See

Commonwealth v. Fenati, 561 Pa. 106, 109, 748 A.2d 205, 206-07 (2000).

Appellant did not file the present PCRA petition until May 29, 2012; therefore,

it is patently untimely and the burden fell upon Appellant to plead and prove

that one of the enumerated exceptions to the one-year time-bar. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa.Super. 2008) (to invoke a statutory exception to the PCRA time-bar, a

petitioner must properly plead and prove all required elements of the

exception).

      Despite the untimeliness of Appellant’s present petition, he has failed to

allege, much less prove, that any of the exceptions set forth in 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii) apply herein. Instead, he simply presents bald allegations

of the trial court’s lack of subject matter jurisdiction, prosecutorial misconduct,


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and the ineffective assistance of all counsel in his PCRA petition filed on May

23, 2012.

      To the extent in his amended petition filed on August 27, 2014, he

attempts to challenge the legality of his sentence based upon the United

States Supreme Court’s ruling in Miller v. Alabama, ___ U.S. ____, 132 S.Ct.

2455, 183 L.Ed. 2d 407 (2012) wherein the Court held that mandatory

sentences of life imprisonment without parole are unconstitutional for juvenile

offenders and in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442

(1977) holding the then-effective Section 1311 of the Sentencing Code, 18

Pa. C.S.A. § 1311 (Supp. 1977-78), which established sentencing procedures

and standards regulating jury determinations of whether or not the death

penalty should be imposed as punishment for murder to be unconstitutional,

we find he is not entitled to relief.

      In Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016), the United States Supreme Court declared its prior

holding in Miller, supra, constitutes a substantive rule of constitutional law

to which state collateral review courts were required as a constitutional matter

to give retroactive effect. Montgomery, ___ U.S. at ____, 136 S.Ct. at 736,

193 L.Ed.2d at ___. The United States Supreme Court decided Montgomery

on January 25, 2016, while Appellant’s current PCRA petition was pending on

appeal. In Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016),

this Court held that the date upon which Montgomery had been decided is


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to be used when calculating whether a petition is timely filed under the sixty-

day rule of 42 Pa.C.S.A. § 9545(b)(2). However, we conclude that, because

Appellant was over eighteen years old when he committed the murder, Miller

does not apply to his case, for as we stated in Commonwealth v. Woods,

179 A.3d 37, 44 (Pa.Super. 2017):

      In Miller, the Supreme Court had held that “mandatory life
      without parole for those under the age of 18 at the time of their
      crimes violated the Eighth Amendment’s prohibition on ‘cruel and
      unusual punishments.’” Miller v. Alabama, ___ U.S. at ____,
      132 S.Ct. at 2460, 183 L.Ed.2d at ____. However, while the
      Supreme Court’s holding in Miller set forth a bright-line rule that
      mandatory sentences of life imprisonment without the possibility
      of parole are unconstitutional for juvenile offenders, it did not
      prevent a trial court from imposing a life sentence upon an
      individual such as Appellant who was over the age of eighteen at
      the time he committed the offense.            Therefore, the right
      recognized by Miller and held to be retroactive in Montgomery
      does not provide Appellant a basis for relief from the PCRA time-
      bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d
      at ____ (holding “the Eighth Amendment forbids a sentencing
      scheme that mandates life in prison without possibility of parole
      for juvenile offenders.”) See also Commonwealth v. Cintora,
      69 A.3d 759, 764 (Pa.Super. 2013) (holding Miller is not an
      exception under Section 9545(b)(1)(iii) to those over the age of
      eighteen at the time crimes were committed); Commonwealth
      v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding the Miller
      decision applies only to defendants “under the age of 18 at the
      time of their crimes” and not to a nineteen year old defendant
      convicted of homicide who claimed he was a “technical juvenile”
      and relied on neuroscientific theories pertaining to immature brain
      development to support his claim).

      In light of the foregoing, Appellant’s instant PCRA petition is untimely,

and he has failed to plead and prove an exception to the statutory time-bar.

The PCRA court correctly determined it lacked jurisdiction to review the merits

of Appellant's petition and properly dismissed it, and we discern no other basis

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on which to disturb the PCRA court's dismissal of Appellant's petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/18




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