J-S24042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ROBERT RICHARDSON                        :
                                          :
                    Appellant             :   No. 2676 EDA 2018

           Appeal from the PCRA Order Entered August 10, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0400721-2003


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

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 21, 2019

      Appellant, Robert Richardson, appeals from the August 10, 2018 Order

dismissing as untimely his second Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      We briefly summarize the facts and procedural history as follows. On

February 2, 2006, a jury convicted Appellant of First-Degree Murder,

Conspiracy to Commit Murder, Aggravated Assault, Recklessly Endangering

Another Person, Firearms not to be Carried, and Possession of an instrument

of Crime. The charges against Appellant arose from a June 29, 2002, incident

during which Appellant and two cohorts fired approximately 40 shots from

automatic handguns and an assault rifle at Ronald James while on a public

street. Fatally wounded during the shooting spree was an innocent bystander,

Omain Gullette, while another bystander, Akeem Johnson, was severely



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S24042-19



injured as he was on his way to the grocery store. Appellant was 24 years old

at the time of the crime.

      On March 22, 2006, the lower court sentenced Appellant to an aggregate

term of life imprisonment plus 64 years’ incarceration, to run consecutively.

On August 31, 2006, Appellant timely filed a notice of appeal to this Court.

      On June 17, 2009, this Court affirmed judgment of sentence. Appellant

did not seek review with the Pennsylvania Supreme Court.            Appellant's

Judgment of Sentence, thus, became final at the end of the day on July 17,

2009, which was 30 days after this Court affirmed Appellant's judgment of

sentence and the time for filing a petition for allowance of appeal with our

Supreme Court expired.       See 42 Pa.C.S.A. § 9545(b)(3) (“A judgment

becomes final at the conclusion of direct review, including discretionary review

in the Supreme Court of the United States ..., or at the expiration of time for

seeking the review”); see also Pa.R.A.P. 1113(a).

      On August 21, 2012, Appellant filed a pro se PCRA petition challenging

the legality of his sentence in light of Miller v. Alabama, 567 U.S. 460, 465

(2012), which held that the Eighth Amendment of the United States

Constitution proscribed mandatory life sentences without parole for individuals

who commit homicide offenses while under 18 years of age, and Montgomery

v. Louisiana, 136 S.Ct. 718 (2016), which applied Miller's holding

retroactively to sentences that had become final prior to that ruling. The court

appointed counsel, but on February 24, 2018, counsel filed a no-merit letter

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

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banc) and a petition to withdraw as counsel based on the acknowledgement

that Appellant was 24 years old at the time he committed murder. On March

14, 2018, the PCRA court issued its notice to dismiss pursuant to Pa.R.Crim.P.

907. Appellant filed a pro se response on April 2, 2018, but the court entered

an order dismissing Appellant’s first petition on April 11, 2018. Appellant filed

no appeal from this order.

      Appellant filed with the PCRA court the present PCRA petition, which he

labeled a “Pro Se Amended PCRA Petition,” on May 10, 2018. In the petition,

moreover, Appellant claimed Miller represented a newly-discovered fact for

purposes of overcoming the PCRA’s one-year time-bar. Specifically, Appellant

contended that although he was 24 years old at the time of his crime, Miller

could apply to a defendant over 18 years old if evidence established he was

developmentally an adolescent. On July 10, 2018, the PCRA court issued its

Rule 907 notice to dismiss.

      On   August    10,     2018,   after   entertaining   Appellant’s   pro   se

correspondence offered to support both his Miller position and the alternative

position that the present petition was an amendment to his first petition, the

PCRA court dismissed the present petition as an untimely filed second petition.

This timely appeal followed.

      Appellant contends that the PCRA court erroneously dismissed his PCRA

petition as untimely when the Newly Discovered Fact Exception of the PCRA

applies. We disagree.




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      “As a general proposition, we review a denial of PCRA relief to determine

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).

Before we may consider the merits of Appellant’s claim, we must address

whether we have jurisdiction to consider the PCRA petition. “The timeliness of

a post-conviction petition is jurisdictional.” Commonwealth v. Furgess, 149

A.3d 90, 92 (Pa. Super. 2016) (citation omitted).

      [The PCRA requires] a petitioner to file any PCRA petition within
      one year of the date the judgment of sentence becomes final. A
      judgment of sentence becomes final at the conclusion of direct
      review ... or at the expiration of time for seeking review.

      ...

      However, an untimely petition may be received when the petition
      alleges, and the petitioner proves, that any of the three limited
      exceptions to the time for filing the petition, set forth at 42
      Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. A petition
      invoking one of these exceptions must be filed within [60] days of
      the date the claim could first have been presented. In order to be
      entitled to the exceptions to the PCRA's one-year filing deadline,
      the petitioner must plead and prove specific facts that
      demonstrate his claim was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal

citations omitted) (internal quotations omitted).

      Here, as we have explained, Appellant's Judgment of Sentence became

final on July 17, 2009. Appellant's current PCRA Petition, filed on May 10,

2018, is thus patently untimely. Appellant, however, attempts to invoke the

timeliness exception under Section 9545(b)(1)(iii), alleging that his illegal

sentence claim is based on a newly recognized constitutional right expressed


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in Miller, which is retroactive in application. See Appellant's Brief at 10 (citing

Montgomery, supra.).

       Appellant's Miller claim fails because he was 24 years old at the time

he committed the instant murder. Miller only applies to individuals who were

juveniles, i.e., under 18 years old, when they committed the crimes on which

their current convictions are based. See Commonwealth v. Lawson, 90

A.3d 1, 6 (Pa. Super. 2014). Further, this Court has previously refused to

render relief on an appellant's brain science argument. See Commonwealth

v. Furgess, 149 A.3d at 94 (rejecting the 19-year-old appellant's argument

based on neuroscientific theories of brain development that he is entitled to

PCRA relief because he was a “technical juvenile” at the time he committed

his crimes). Therefore, we reject Appellant’s contention that Miller provides

him with an exception to the PCRA time-bar.

       Accordingly, we discern no error with the PCRA court’s order dismissing

the present PCRA petition as patently untimely.1

       Order affirmed.




____________________________________________


1 Even if we were to construe the present PCRA petition as an amendment to
Appellant’s first PCRA petition, we would arrive at the same conclusion, for
Appellant’s first petition was also patently untimely without qualifying for any
timeliness exception.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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