J-A09044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 PAUL RUSSELL                             :
                                          :
                    Appellant             :   No. 2978 EDA 2018

            Appeal from the Order Entered September 18, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0611781-1991


BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED MAY 17, 2019

      Paul Russell (Russell) appeals pro se from an order entered in the Court

of Common Pleas of Philadelphia County (PCRA court) dismissing as untimely

his third petition for relief under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

      Following a jury trial, Russell was convicted in 1992 of first degree

murder and possessing instruments of crime and sentenced to the mandatory

term of life imprisonment without the possibility of parole. We set forth the

facts underlying those convictions in a prior memorandum as follows:

      On March 7, 1991, at approximately 10:30 o'clock P.M., Gregory
      Schofield, the Commonwealth's key eyewitness, was talking with
      Sherman Harris at the corner of Twenty-fifth and Harlan Streets
      here in North Philadelphia. After Schofield lent Harris three
      dollars, Harris proceeded to walk towards the intersection of
      Twenty-fourth and Harlan Streets.      The defendant and an
      associate known as Nate approached Harris at a location in close
      proximity to 2452 Harlan Street. Nate began to tussle with Harris
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      and knocked him to the ground. Harris fell near the steps of 2452
      Harlan Street. Schofield then grabbed Nate and pulled him off
      Harris. At this point, the defendant, who was standing near the
      street during this struggle, told Harris, "I'm tired of you taking my
      stuff” and proceeded to fire five bullets at Harris with a .22 caliber
      revolver. The defendant stood above Harris from about five feet
      away as he fired the five shots, thereby emptying his revolver.
      However, instead of ceasing his gunfire, the defendant reloaded
      his gun and fired six more shots into Harris. Eight of these eleven
      gunshots entered the body of Harris and resulted in his death.

Commonwealth v. Russell, 3073 EDA 1999, unpublished memorandum, at

1-2 (Pa. Super. 2000).

      We affirmed Russell’s judgment of sentence by memorandum filed

October 28, 1996.     Commonwealth v. Russell, 2647 Philadelphia 1995,

unpublished memorandum (Pa. Super. 1996). Russell unsuccessfully sought

timely PCRA relief and we affirmed on appeal. 3073 EDA 1999.

      On April 13, 2015, Russell filed his second PCRA petition and the PCRA

court denied relief finding that Russell failed to plead and prove any exception

to the one-year time bar.       We affirmed on appeal, Commonwealth v.

Russell, 400 EDA 2016, 2016 WL 5846824 (Pa. Super. 2016). Russell did

not seek further review from our Supreme Court.

      The present proceeding commenced on March 21, 2016.              The PCRA

court took no action until July 30, 2018, when it issued a notice of intent to

dismiss. Russell did not reply and the PCRA court entered an order denying




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the petition on September 18, 2018. Russel timely appealed and has briefed

four issues, all of which are claims of ineffective assistance of trial counsel.1

       Before addressing Russell’s claims, we must first determine whether this

petition was timely filed. The PCRA statute requires that any petition “shall

be filed within one year of the date the judgment becomes final,” 42 Pa.C.S.

§ 9545(b)(1). There are three exceptions, which apply if the petition alleges

and 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. § 9545(b)(1). Additionally, under § (b)(2), Jordan’s claim had to

be filed within sixty days of the date it could have been presented.2



____________________________________________


1 “When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018). Timeliness presents a
question of law, which we review de novo and our scope of review is plenary.
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017).

2The subsection was amended in October 2018 and now gives a petitioner
one year to present claims arising on or after December 24, 2017.

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      The time-bar is jurisdictional and we must determine whether the PCRA

petition was timely filed. Commonwealth v. Graves, 197 A.3d 1182, 1185

(Pa. Super. 2018). Since Russell’s judgment of sentence became final long

ago, the underlying PCRA petition was timely only if one of the exceptions

applied.

      The petition at issue, captioned “Petition for Post Conviction Relief to

Exhaust Remedies and Preserve Issues Reviewable Under Montgomery v.

Louisiana,” was filed March 21, 2016.       Petition, 3/21/16.   Montgomery,

which was issued on January 25, 2016, held that states must give retroactive

effect to new substantive rules of constitutional law. One such substantive

rule is Miller v. Alabama, 567 U.S. 460 (2012), which held that it is

unconstitutional to impose a mandatory sentence of life imprisonment without

the possibility of parole for crimes committed while the defendant was a

juvenile.   Russell’s March 21, 2016 filing, therefore, facially satisfied the

(b)(1)(iii) exception. See Commonwealth v. Secreti,134 A.3d 77, 82–83

(Pa. Super. 2016) (“The date of the Montgomery decision (January 25, 2016,

as revised on January 27, 2016) will control for purposes of the 60–day rule

in Section 9545(b)(2).”).

      However,      the     PCRA    court     correctly    determined     that

Montgomery/Miller is of no moment since Russell was over eighteen at the

time of his crimes. “[P]etitioners who were older than 18 at the time they

committed murder are not within the ambit of the Miller decision and


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therefore may not rely on [Montgomery] to bring themselves within the

time-bar exception in Section 9545(b)(1)(iii).” Commonwealth v. Furgess,

149 A.3d 90, 94 (Pa. Super. 2016). Furthermore, Russell did not even attempt

to explain how his invocation of (b)(1)(iii) via Montgomery could revive

claims of trial counsel ineffectiveness as those claims have nothing to do with

Miller’s holding. Even if Miller applied to Russell, the only thing he would be

entitled to is resentencing. See Commonwealth v. Porter, 35 A.3d 4, 13

(Pa. 2012) (“These provisions are claim-specific, as they would have to be,

given the sixty-day filing restriction[.]”). Therefore, the PCRA court correctly

determined that it lacked jurisdiction to address any and all of Russell’s claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19




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