J-S32039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EUGENE DEWS                              :
                                          :
                    Appellant             :   No. 3606 EDA 2018

          Appeal from the PCRA Order Entered November 13, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0201661-1990


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                              FILED JULY 15, 2019

      Eugene Dews (Appellant) appeals pro se from the order dismissing as

untimely his eighth petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following careful review, we affirm.

      The procedural history underlying this appeal has been summarized by

this Court in a prior appeal:

      In November of 1990, the trial court convicted [Appellant] of
      murder in the first degree, robbery, theft by unlawful taking, and
      unauthorized use of a vehicle. On December 11, 1991, the trial
      court imposed a sentence of life imprisonment [without parole] for
      the first degree murder conviction and a concurrent prison term
      of ten to twenty years for the robbery conviction. This Court
      affirmed the judgment of sentence, and on December 29, 1992,
      our Supreme Court denied allowance of appeal. Commonwealth
      v. Dews, 617 A.2d 388 (Pa. Super. 1992) (unpublished
      memorandum).

      [Appellant] filed his first PCRA Petition, and, after appointing
      counsel, the PCRA court dismissed the Petition. This Court
      affirmed on January 4, 1994, and our Supreme Court denied
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       allowance of appeal on April 26, 1994. Commonwealth v.
       Dews, 640 A.2d 470 (Pa. Super. 1994) (unpublished
       memorandum). [Appellant] filed a series of three unsuccessful
       PCRA Petitions in 1995, 1996, and 2000, and this Court affirmed
       the Orders denying those Petitions.[FN 1]

       On November 30, 2005, [Appellant], pro      se, filed [ ] his fifth[ ]
       PCRA Petition. On September 17, 2006,       the PCRA court denied
       the PCRA Petition as untimely, after        issuing proper Notice
       pursuant to Pennsylvania Rule of Criminal   Procedure 907.


       FN 1
          See Commonwealth v. Dews, 669 A.2d 408 (Pa. Super.
       1995) (unpublished memorandum); 695 A.2d 435 (Pa. Super.
       1997) (unpublished memorandum); 823 A.2d 1023 (Pa. Super.
       2002) (unpublished memorandum).

Commonwealth v. Dews, 2803 EDA 2006, at *1-2 (Pa. Super. June 20,

2007) (unpublished memorandum).

       On June 20, 2007, this Court affirmed the denial of Appellant’s fifth PCRA

petition. Appellant filed his sixth PCRA petition on June 2, 2008. The PCRA

court issued its Rule 907 notice on September 9, 2009.          Appellant filed a

response, and, upon a careful review of the record, the PCRA court dismissed

Appellant’s sixth petition on October 22, 2009. Appellant did not appeal that

decision.

       On August 22, 2011, Appellant filed his seventh PCRA petition, seeking

to have his collateral appeal rights reinstated in order to appeal the dismissal

of his sixth PCRA petition. Appellant filed the instant pro se PCRA petition, his

eighth, on May 15, 2012.1             On September 4, 2012, Appellant filed a
____________________________________________


1The record reflects that Appellant filed his seventh PCRA petition on August
22, 2011; however, it does not appear that any action was taken on that



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supplemental petition, contending that Miller v. Alabama, 132 S. Ct. 2455

(2012) (holding that sentences of mandatory life without parole for those

under the age of eighteen at the time of their crimes violated the Eighth

Amendment’s prohibition on cruel and unusual punishments), entitled him to

relief. See PCRA Petition, 9/4/12, at 2-13. Essentially, Appellant claimed that

due to his difficult life circumstances and limited cognitive abilities, he was

technically a juvenile eligible for the relief offered by Miller, despite the fact

that he was 24 years old when he committed murder.           Id. On March 24,

2014, the PCRA court issued notice pursuant to Rule of Criminal Procedure

907, that it would dismiss the petition without a hearing because it was

untimely and Appellant had not satisfied a time-bar exception. Appellant filed

a pro se response to the court’s notice on April 7, 2014.

       No further action was taken on this case until February 12, 2016, when

Appellant filed a second supplemental PCRA petition, asserting that the United

States Supreme Court’s decision in Montgomery v. Louisiana, 136 S. Ct.

718 (2016) (extending Miller retroactively to juvenile offenders on collateral

review), also entitled him to relief. On September 25, 2018 and October 17,
____________________________________________


petition. Appellant filed the instant petition, his eighth, on May 15, 2012.
While a PCRA court may not entertain a new PCRA petition when a prior
petition is still under appellate review and, thus, is not final, nothing bars a
PCRA court from considering a subsequent petition, even if a prior petition is
pending, so long as the prior petition is not under appellate review. See
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en
banc). As Appellant’s 2011 petition has never been under appellate review,
the PCRA court was not barred from considering his 2012 petition.



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2018, the PCRA court again issued its Rule 907 notice “after concluding from

an assiduous review of the record that [Appellant’s] PCRA petition was

untimely and that none of the exceptions set forth in the PCRA excused the

late filing. . . .” PCRA Court Opinion, 2/28/19, at 3. Appellant filed a response

to the Rule 907 notice. On November 13, 2018, the PCRA court dismissed

Appellant’s petition as untimely.2

       Appellant timely filed a notice of appeal. It does not appear that the

PCRA court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). See In re Estate of Boyle, 77

A.3d 674, 676 (Pa. Super. 2013) (with regard to the preservation of

Appellant’s issues on appeal, it is the trial court’s order that triggers an

appellant’s obligation under the rule).

       On appeal, Appellant raises the following issue for our review:



____________________________________________


2 Our Supreme Court “has condemned the unauthorized filing of supplements
and amendments to PCRA petitions, and held that claims raised in such
supplements are subject to waiver.” Commonwealth v. Reid, 99 A.3d 470,
484 (Pa. 2014). However, where a petitioner has filed a supplement without
leave of court and the PCRA court did not strike the supplement, but rather
considered the supplement when it addressed the petitioner’s argument, this
Court has concluded that “the PCRA court implicitly permitted amendment
under [Pennsylvania Rule of Criminal Procedure] Rule 905(A).”
Commonwealth v. Brown, 141 A.3d 491, 503-04 (Pa. Super. 2016).

Here, Appellant filed two supplemental materials to his eighth PCRA petition.
The PCRA court considered such materials and the Commonwealth did not
object to the filings. Accordingly, we decline to find waiver and will consider
not only Appellant’s petition filed on May 15, 2012, but also the supplements
filed on September 4, 2012 and February 12, 2015.

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      DID THE POST CONVICTION COURT ERR IN RULING THAT THE
      PETITION AND AMENDMENTS WERE UNTIMELY FILED, AND FOR
      RULING ON THE MERITS OF THE CLAIMS WITHOUT FIRST
      HOLDING A MERITS HEARING TO DEVELOP THE RECORD[?]

Appellant’s Brief at ii.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). On appeal, we examine the issues

raised in light of the record “to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and denying

relief without an evidentiary hearing.” See Commonwealth v. Springer,

961 A.2d 1262, 1264 (Pa. Super. 2008).

      Instantly, we address the timeliness of Appellant’s petition, as the PCRA

time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of Appellant’s claims.           See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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


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       (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). Any petition attempting to invoke 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); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).3

       Appellant’s petition is untimely.         As previously noted by this Court,

Appellant’s judgment of sentence became final in 1993. Appellant’s instant

PCRA petition was filed in 2012, nineteen years after his judgment of sentence

became final. Therefore, we are without jurisdiction to consider Appellant’s

appeal unless he has pled and proved one of the three timeliness exceptions.

See Bennett, 930 A.2d at 1267.

       Appellant attempts to invoke the constitutional right exception under

Section 9545(b)(1)(iii) on the basis that the relief provided by Miller and

made retroactive by Montgomery should extend to those 25 years old and

under, because such offenders are still developmentally adolescents and

____________________________________________


3 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3.
As Appellant’s petition was filed in May 2012, and supplemented in September
2012 and February 2016, this change does not impact Appellant or our
analysis.


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possess the age-related characteristics of youth that must be considered prior

to the imposition of a sentence of life without parole. See Appellant’s Brief at

1-5. Additionally, because Appellant filed his petition within 60 days of the

Montgomery ruling, he has ostensibly satisfied the requirements of Sections

9545(b)(1)(iii) and (2).

      This Court recently re-examined this issue en banc in Commonwealth

v. Lee, 206 A.3d 1, (Pa. Super. 2019) (en banc). In Lee, the defendant was

18 years and nine-months old when she was involved in a robbery that

resulted in the death of the intended victim.           Id. at 3.    Following the

publication of Montgomery, Lee filed a PCRA petition arguing that she was a

“virtual minor” at the time of the commission of her crime and that “the

rationale   underlying     the   Miller    holding,   including   consideration   of

characteristics of youth and age-related facts identified as constitutionally

significant by the Miller Court, provides support for extending the benefit of

Miller to her case.” Id. Ultimately, this Court concluded that Lee had not

satisfied a time bar exception, observing:

      It is not this Court’s role to override the gatekeeping function of
      the PCRA time-bar and create jurisdiction where it does not exist.
      The PCRA’s time limitations “are mandatory and interpreted
      literally; thus, a court has no authority to extend filing periods
      except as the statute permits.” Commonwealth v. Fahy, [737
      A.2d 214, 222 (Pa. Super.] 1999). The period for filing a PCRA
      petition “is not subject to the doctrine of equitable tolling.” Id.

      We recognize the vast expert research on this issue. If this matter
      were one of first impression and on direct appeal, we might
      expound differently. However, we are an error-correcting court.
      Until the United States Supreme Court or the Pennsylvania

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      Supreme Court recognizes a new constitutional right in a non-
      juvenile offender, we are bound by precedent. We conclude, as
      we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa.
      Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa.
      Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759
      (Pa. Super. 2013) abrogation on other grounds recognized in
      Furgess, supra, at 94], that age is the sole factor in determining
      whether Miller applies to overcome the PCRA time-bar and we
      decline to extend its categorical holding.

Lee, 206 A.3d at 11 (footnote omitted).

      Accordingly, Appellant has failed to successfully plead or prove that he

meets the new constitutional right exception to the timeliness requirements

of the PCRA, 42 Pa.C.S.A. § 9545(b)(2)(iii), and the PCRA court did not err in

dismissing his petition. See 42 Pa.C.S.A. § 9545(b); Bennett, 930 A.2d at

1267; Ragan, 923 A.2d at 1170; Lee, 206 A.3d at 11.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/19




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