J-S06024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :         PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CHRISTINE PEDRAZA                       :
                                         :   No. 1876 EDA 2017
                    Appellant

                  Appeal from the PCRA Order May 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1104041-1999


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED MARCH 13, 2018

      Christine Pedraza appeals pro se from the post-conviction court’s May

11, 2017 order dismissing, as untimely, her second petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows. On October 14, 1999, Pedraza shot and killed Jennifer Monti in the

city of Philadelphia. A jury convicted Pedraza of first-degree murder,

aggravated assault, carrying a firearm without a license, and possessing an

instrument of crime in July 2000. On October 5, 2000, the trial court sentenced

Pedraza to a mandatory term of life imprisonment for first-degree murder,

plus an aggregate consecutive term of six to 12 years’ incarceration for the

remaining convictions.
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      We affirmed Pedraza’s judgment of sentence on May 9, 2002 and our

Supreme Court denied further review. See Commonwealth v. Pedraza, 804

A.2d 59 (Pa.Super. 2002) (unpublished memorandum), appeal denied, 815

A.2d 632 (Pa. 2002). On November 29, 2003, Pedraza filed a timely first PCRA

petition. After counsel was appointed, the trial court dismissed Pedraza’s

petition on January 9, 2006. This Court affirmed on December 13, 2007, and

our Supreme Court denied further review. See Commonwealth v. Pedraza,

945 A.2d 767 (Pa.Super. 2007) (unpublished memorandum), appeal denied,

952 A.2d 676 (Pa. 2008).

      Pedraza filed the instant pro se PCRA petition on August 17, 2012,

followed by an amended petition on March 3, 2016. The PCRA court dismissed

Pedraza’s petition as untimely on May 11, 2017. Pedraza filed a timely pro se

notice of appeal. It does not appear that the PCRA court ordered her to file a

Pa.R.A.P. 1925(b) statement.

      Pedraza raises the following issues for our review:

      A. Did [Pedraza] timely file a PCRA [petition] and thus it should
         not have been dismissed as untimely without an evidentiary
         hearing on the merits?

      B. Did Court of Common Pleas [err] in determining that Graham
         v. Florida, Montgomery v. Louisiana, and People v.
         House, did not apply to [Pedraza]?

      C. Does Graham v. Florida and People v. House apply to
         [Pedraza] whose culpability is questionable when age, history
         of sexual abuse, history of long term drug abuse, extreme
         duress, and diminished capacity are considered according to
         recent neuroscience in above-mentioned cases and additional
         cases under review?


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Pedraza’s Brief at 2.

      Our standard of review of an order denying PCRA relief is limited to

determining “whether the decision of the PCRA court is supported by the

evidence of record and is free of legal error.” Commonwealth v. Melendez-

Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015). However, as a prefatory

matter, we must address the timeliness of Pedraza’s PCRA petition. “The

timeliness of a post-conviction petition is jurisdictional.” Commonwealth v.

Furgess, 149 A.3d 90, 92 (Pa.Super. 2016) (citation omitted). Pursuant to

the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the following exceptions set forth in 42

Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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

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               held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). 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. § 9545(b)(2).

      In this case, Pedraza’s judgment of sentence became final in 2003, after

this Court affirmed her judgment of sentence, our Supreme Court denied

review, and the period to petition the United States Supreme Court

subsequently expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Ct. R.

13. Therefore, Pedraza’s instant petition, initially filed in 2012, is patently

untimely. Thus, we cannot address the merits of Pedraza’s issues unless she

meets one of the above-stated exceptions to the PCRA’s time bar.

      Pedraza attempts to overcome the time bar by asserting the newly-

recognized constitutional-right exception set forth in Section 9545(b)(1)(iii).

Pedraza relies on Miller v. Alabama, 567 U.S. 460, 465 (2012), in which the

United States Supreme Court held that a mandatory sentence of life

imprisonment without the possibility of parole was unconstitutional when

imposed on defendants who were under the age of 18 at the time of their

crimes. Specifically, the Miller court reasoned that “children have a ‘lack of

maturity and an underdeveloped sense of responsibility,’ leading to

recklessness, impulsivity, and heedless risk-taking.” Id. at 471 (quoting

Roper   v.   Simmons,     543   U.S.   551,   569   (2005)).   Significantly,   in




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Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016), the Supreme Court

held that Miller applied retroactively to cases on state collateral review.1

       However, Pedraza acknowledges that she was 19 at the time of the

crime. See Pedraza’s Brief at 6. Nevertheless, she contends that the rationale

underlying the Miller/Montgomery line of cases should apply to her due to

her “youthfulness” at the time of the crime in combination with an “affective

disorder and a history of drug abuse, sexual and physical abuse.” Id. at 20.

She argues that various studies have shown that a person’s propensity for

impulse control, risk assessment, and moral reasoning is not fully developed

until an individual’s “mid 20’s.” Id. at 14.

       However, this Court has previously rejected this precise claim in

Furgess, supra, and Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super.

2013). In Furgess, our Court held:

       The Miller decision applies to only those defendants who were
       under the age of 18 at the time of their crimes.

                                          ***

       [Furgess] argues that he nevertheless may invoke Miller because
       he was a “technical juvenile,” and he relies on neuroscientific
       theories regarding immature brain development to support his
       claim that he is eligible for relief. But, rather than presenting an
       argument that is within the scope of the Miller decision, this
       argument by [Furgess] seeks an extension of Miller to persons
       convicted of murder who were older at the time of their crimes
       than the class of defendants subject to the Miller holding.

____________________________________________


1 Pedraza properly filed her amended PCRA petition on March 3, 2016, less
than 60 days after Montgomery was issued on January 25, 2016. See 42
Pa.C.S. § 9545(b)(2).

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     We rejected reliance on this same argument for purposes of
     Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
     759 (Pa.Super. 2013). The defendants in Cintora were 19 and 21
     years old at the times of their crimes, but they argued that Miller
     should apply to them and others whose brains were not fully
     developed at the time of their crimes. We stated that a contention
     that a newly-recognized constitutional right should be extended
     to others does not render a petition seeking such an expansion of
     the right timely pursuant to section 9545(b)(1)(iii).

     We also pointed out in Cintora that the right recognized in Miller
     had not been held to apply retroactively at the time of that
     decision and that its non-retroactivity would have been an
     alternative basis for denial of relief. Because the U.S. Supreme
     Court in Montgomery has since held that Miller does apply
     retroactively, this second reason stated in the Cintora opinion is
     no longer good law. However, nothing in Montgomery
     undermines Cintora's holding that petitioners who were [under
     the age of 18] at the time they committed murder are not within
     the ambit of the Miller decision and therefore may not rely on
     that decision to bring themselves within the time-bar exception in
     Section 9545(b)(1)(iii). Accordingly, Cintora remains controlling
     on this issue, and [Furgess’] assertion of the time-bar exception
     at Section 9545(B)(1)(iii) must be rejected.

Furgess, 149 A.3d at 94 (citations, original brackets, and most quotations

omitted; emphasis in original).

     Therefore, pursuant to Furgess and Cintora, Pedraza has failed to

plead and prove an exception to the PCRA’s one-year time bar. Accordingly,

the PCRA court properly dismissed Pedraza’s instant PCRA petition as untimely

and we affirm the PCRA court’s order denying Pedraza relief.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




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