J-S19006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

THEODORE D. PRZYBYSZEWSKI JR.

                        Appellant                   No. 576 EDA 2014


           Appeal from the PCRA Order dated February 4, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0300701-1985


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                           FILED JUNE 23, 2015

      Appellant Theodore D. Przybyszewski Jr. pro se appeals from the

February 4, 2014 order of the Court of Common Pleas of Philadelphia County

(“PCRA court”), which dismissed as untimely Appellant’s request for

collateral relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. For the reasons set forth below, we affirm.

      The PCRA court summarized the facts and procedural history of this

case as follows:

            [Appellant] was arrested and charged with murder and
      related offenses for an incident which occurred in late December
      1982. Prior to trial, a plea bargain was reached in which the
      Commonwealth stated that the death penalty would not be
      sought in exchange for a guilty plea. On September 9, 1987,
      [Appellant] pled guilty to first degree murder and possession of
      an instrument of crime in front of the Honorable George J. Ivins,
      and was sentenced to life imprisonment. [Appellant] moved to
      withdraw his guilty plea, but his motion was denied at a hearing
      on September 23, 1987. [Appellant] appealed the judgment of
      sentence, and the Superior Court dismissed the appeal on
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       February 11, 1988 for failure of court appointed counsel to file a
       brief.[1]

              On October 19, 1988, [Appellant] filed a petition under the
       Post Conviction Hearing Act. Counsel was appointed, and based
       upon submission of a “no merit” letter pursuant to
       Turner/Finley,[FN] [Appellant’s] petition was dismissed as
       frivolous on October 10, 1991. [Appellant] filed an appeal, and
       the Superior Court affirmed the dismissal on August 13,
       1992. Allocatur was denied on April 15, 1993 by the
       Pennsylvania Supreme Court.

              [FN.] Commonwealth v. Turner, 544 A.2d 927
              (Pa. 1988) and Commonwealth v. Finley, 550
              A.2d 214 (Pa. Super. 1988) [(en banc)].

              On February 15, 1995, [Appellant] filed a petition pursuant
       to the Post Conviction Relief Act. Counsel was appointed, and
       after review, a “no merit” letter pursuant to Turner/Finely was
       filed.   [Appellant’s] petition was dismissed based on
       Turner/Finley on October 26, 1995. [Appellant] filed an appeal
       to the Superior Court, but the appeal was withdrawn and
       discontinued on March 20, 1996.

              [Appellant] filed the instant petition on February 3,
       2010. A copious number of amended petitions and supplemental
       filings have since been submitted. After conducting an extensive
       and exhaustive review of the record and applicable case law,
       th[e] [PCRA court] finds that [Appellant’s] petition for post
       conviction collateral relief is untimely filed. Therefore, this
       [PCRA court] does not have jurisdiction to consider [Appellant]’s
       PCRA petition.

PCRA Court Opinion, 2/4/15, at 1-2.              Appellant timely appealed to this

Court.


____________________________________________


1
  Appellant’s judgment of sentence became final prior to the 1995 enactment
of the PCRA. As a result, he had until January 16, 1997 to file a timely PCRA
petition so long as that petition was his first one. See Commonwealth v.
Weatherill, 24 A.3d 435, 436 (Pa. Super. 2011) (citing Commonwealth v.
Fenati, 748 A.2d 205 (Pa. 2000)) (“[T]here is an exception to [Section]
9545 for a first PCRA petition filed by a defendant whose judgment of
sentence became final prior to the 1995 amendments as long as the first
PCRA petition is filed by January 16, 1997.”), appeal denied, 63 A.3d 777
(Pa. 2013).



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       On appeal,2 Appellant filed an inordinately lengthy multi-part brief—

containing confusing and rampantly incoherent arguments—that fails to

comply in any meaningful way with the briefing requirements set forth in the

procedural rules.3 Although we are unable to discern the precise nature of

Appellant’s arguments on appeal, we construe his brief to assert the

following assertions of error.         First, Appellant appears to challenge the

discretionary aspects of his sentence, arguing that the trial court failed to

consider mitigating factors, including his mental illness. Second, Appellant

raises an ineffectiveness claim against his trial, direct appeal and PCRA

counsels. Third, Appellant appears to argue his sentence is unconstitutional

____________________________________________


2
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3
   Additionally, Appellant filed a 50-page reply brief that was equally
incoherent and confusing. We also recognize the PCRA court’s observation:

       [Appellant] filed over 45 Amended Petitions, Motions, and Pro Se
       Correspondences in support of his PCRA Petition, with the
       majority of filings well over 50 pages. The vast majority of
       [Appellant’s] filings do not come remotely close to supporting a
       single one of his claims. For example, [Appellant] opined on the
       current court system and its deficiencies, why [Appellant] should
       be appointed a strictly female attorney, and submitted a variety
       of “Motions” that are outside the scope of the PCRA court. These
       remaining filings can only be categorized as frivolous and
       vexatious at best, and inappropriate and malicious at worse.
       [Appellant’s] preference of flooding the court with wasteful filings
       has gone well past the point of decency and crossed the line of
       gross waste of judicial resource in both in his own case and that
       of other [p]etitioners.

PCRA Court Opinion, 2/4/14, at 11-12.



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given his mental illness. Fourth, Appellant argues that his sentence of life

imprisonment violates the Equal Protection Clause of the United States and

Pennsylvania constitutions, because he was below the age of 25 when he

committed the homicide.

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

determine as a threshold matter whether the court erred in dismissing as

untimely Appellant’s PCRA petition.        The PCRA contains the following

restrictions governing the timeliness of any PCRA petition.

      (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 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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

      (3) For purposes of this subchapter, a judgment becomes final at
      the conclusion of direct review, including discretionary review in
      the Supreme Court of the United States and the Supreme Court
      of Pennsylvania, or at the expiration of time for seeking the
      review.



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42 Pa.C.S.A. § 9545(b) (emphasis added).           Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014).

       Instantly, there is no dispute that Appellant’s PCRA petition was

untimely.    Appellant argues only that he overcomes the PCRA’s time-bar

because of the United States Supreme Court’s decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012).4 Appellant argues Miller applies to the

case sub judice, because Appellant was an adult under the age of twenty-

five at the time he committed the homicide.5 In support of his argument,

Appellant asserts that adults under the age of twenty-five do not have fully

developed brains.

       Appellant’s argument fails for several reasons. First, Appellant did not

raise this argument within 60 days of the Supreme Court’s June 25, 2012

decision in Miller.      As the PCRA court noted, Appellant “did not file his

Miller claim until January 28, 2013, which is well past the 60-day deadline.”

PCRA Court Opinion, 2/4/14, at 9. Second, it is settled that Miller did not

recognize a new constitutional right under Section 9545(b)(1)(iii) that


____________________________________________


4
  The Court in Miller held that “[m]andatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132
S. Ct. at 2460.
5
  It is undisputed that Appellant was twenty-four years old at the time he
committed the homicide. See PCRA Court Opinion, 2/4/14, at 10.



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applies retroactively. In Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013), our Supreme Court held that Miller did not apply retroactively to

cases on collateral appeal.    Cunningham, 81 A.3d at 9-10 (noting that

“nothing in [a]ppellant’s arguments persuades us that Miller’s proscription

of imposition of mandatory life-without-parole sentences upon offenders

under the age of eighteen at the time their crimes were committed must be

extended to those whose judgments of sentences were final as of the time of

Miller’s announcement”).      As noted earlier, Appellant’s sentence became

final in 1988, well before the Miller decision was issued.   Third, we have

rejected the argument that Miller applies to adults with underdeveloped

brains.   In Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013), two appellants, who were nineteen

and twenty-one years of age at the time of their underlying crimes, and

sentenced to life imprisonment, claimed:

      [T]hat because Miller created a new Eighth Amendment right,
      that those whose brains were not fully developed at the time of
      their crimes are free from mandatory life without parole
      sentences, and because research indicates that the human mind
      does not fully develop or mature until the age of 25, it would be
      a violation of equal protection for the courts to treat them or
      anyone else with an immature brain, as adults. Thus, they
      conclude that the holding in Miller should be extended to them
      as they were under the age of 25 at the time of the murder and,
      as such, had immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to [S]ection

9545(b)(1)(iii).”   Id. (emphasis added).   Thus, as in Cintora, Appellant’s

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claim that Miller applied to the case sub judice based on his mental

development is without merit.6

       Based on the foregoing, we conclude that the PCRA court did not err in

concluding that Appellant’s PCRA petition was untimely.7

       Order affirmed. Application to Strike denied.




____________________________________________


6
    To the extent Appellant argues his mental illness qualifies as newly-
discovered evidence exception to the PCRA’s timeliness requirement, we
reject this argument as baseless. As the PCRA court found, in his 1988
petition for collateral relief, Appellant “claimed that he was mentally
incompetent at the time of crime and at sentencing and therefore his guilty
plea was involuntary.” PCRA Court Opinion, 2/4/14, at 5. Moreover, the
PCRA court noted Appellant also raised the issue of his mental illness in his
1995 petition for collateral relief. Id. Despite knowledge of his mental
illness, Appellant, however, did not invoke the newly-discovered evidence
exception until February 3, 2010, well past the 60-day requirement under
Section 9545(b)(2). Given the fact that Appellant was aware of his mental
illness in 1988, and he did not invoke the newly-discovered evidence
exception within 60 days, his newly-discovered evidence claim fails to satisfy
the requirements of Section 9545(b)(1)(ii).
7
  On April 17, 2015, Appellant filed a thirty-five page “Application to Strike”
the Commonwealth’s brief, raising confusing and incoherent arguments.
Appellant fails to make any cogent arguments for why we should strike the
Commonwealth’s brief. In fact, our review of the Commonwealth’s brief
does not indicate any deficiencies requiring us to strike the brief.
Accordingly, we deny Appellant’s Application to Strike the Commonwealth’s
brief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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