J-S70036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN BRABHAM

                            Appellant                 No. 244 EDA 2015


                Appeal from the PCRA Order December 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1206831-1993


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 20, 2015

        Benjamin Brabham appeals from the trial court’s order denying his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541-9546.1 After careful review, we affirm.

        The trial court summarized the relevant facts of the instant case as

follows:

        Defendant, Benjamin Brabham, was charged . . . with murder
        generally, robbery and criminal conspiracy. These charges arose
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On appeal from the denial of PCRA relief, we must determine whether the
PCRA court’s findings are supported by the record and whether the order is
otherwise free of legal error. Commonwealth v. Blackwell, 647 A.2d 915,
920 (Pa. Super. 1994). We will not disturb the PCRA court’s findings unless
they have no support in the record. Id.
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        out of an incident that occurred on October 23, 1993, during
        which defendant lured Mr. Andre Battle, a known drug dealer,
        into an alley so that co-defendant Gregory Reeves could rob
        Battle. The plan called for Reeves to engage in a subterfuge and
        appear to rob defendant as well because Battle knew defendant
        and defendant was afraid Battle would retaliate if Battle deduced
        that defendant participated in the robbery.

        Once Battle was in the alley, Reeves placed a .357 Magnum
        revolver against Battle’s head and proceeded to rob him. During
        the incident Reeves fired a single shot into [Battle’s] head, killing
        him. Following the arrest, the defendant, who was a juvenile at
        the time,2 gave police a statement wherein he admitted that he
        participated in the robbery that culminated in Mr. Battle’s death.

        Defendant was tried before the Honorable Jane C. Greenspan,
        sitting without a jury, in September of 1994, and was found
        guilty of second-degree murder, and the other two charges listed
        above.     Following the recording of the verdict, defendant
        received the mandatory sentence of life imprisonment on the
        second-degree murder conviction.      Verdicts without further
        penalty were entered on the robbery and conspiracy charges. A
        direct appeal followed and on October 18, 1995, the
        Pennsylvania Superior Court [] affirmed the judgment of
        sentence.    (3681 PHL 1994).     Defendant thereafter filed a
        petition for allowance of appeal in the Pennsylvania Supreme
        Court, which on May 23, 1996, denied the petition. (905 E.D.
        1995).

        On October 10, 2000, defendant filed a pro se petition for a writ
        of habeas corpus.       The matter was assigned to Justice
                  3
        Greenspan      for disposition who, upon determining that
        defendant’s petition must be treated as a petition under the
        Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9741 et seq.,
        ruled that defendant’s petition had been untimely filed and
        dismissed it in September of 2001.

____________________________________________


2
    Brabham was sixteen-years-old at the time of the murder.
3
 We note that at the time she disposed of Brabham’s pro se petition, Justice
Greenspan had not yet been appointed to the Supreme Court of
Pennsylvania.



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     Following the dismissal of his petition, defendant appealed
     Justice Greenspan’s order to the Superior Court, which on
     August 9, 2002, affirmed the order. (2929 EDA 2001).

     On June 23, 2003, defendant filed a counseled writ of habeas
     corpus in the federal courts. It was denied on November 20,
     2003, by a judge of the [E]astern District of Pennsylvania. On
     May 27, 2004, the Third Circuit Court of Appeals denied a
     request for a certificate of appealability.

     On April 29, 2005, defendant filed a pro se petition pursuant to
     the PCRA, which is the subject of this appeal. Over the next
     several years defendant, through counsel, filed several
     supplemental petitions. On December 14, 2014, this Court
     denied defendant PCRA relief without a hearing. Defendant
     thereafter filed a notice of appeal and a court-ordered Pa.R.A.P.
     1925(b) statement.

Trial Court Opinion, 2/10/15, at 1-3 (footnotes omitted).

     On appeal, Brabham raises several issues for our review:

     (1)   Whether appellant’s [] mandatory sentence of life without
           parole is “cruel punishment” under Article I, §§ 1,9, and 13
           of the Pennsylvania Constitution and “cruel and unusual
           punishment”      under   the   Eighth     and     Fourteenth
           Amendments to the U.S. Constitution.

     (2)   Whether appellant's [] mandatory sentence of life without
           parole is unconstitutional under both Article 1, §§ 1, 9, and
           13 of the Pennsylvania Constitution and under the Eighth
           and Fourteenth Amendments to the U.S. Constitution
           because two classes of prisoners sentenced to mandatory
           life without parole are treated differently.

     (3)   Whether Miller v. Alabama, 132 S.Ct 2455 (2012),
           applies retroactively to the appellant who has exhausted
           his appeal rights and is proceeding under the Post
           Conviction Relief Act because: (1) Miller's companion case,
           Jackson v. Hobbs, 132 S.Ct. 548 (2011) was decided on
           collateral review and (2) cases from both strands of
           precedent relied upon by the Court in Miller have been
           applied retroactively.

     (4)   Whether, even if life without parole was a permissible
           sentence, no Pennsylvania statute exists to determine

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            parole eligibility for juveniles who were convicted of
            Second Degree Murder and any new sentence imposed on
            appellant must not exceed the highest statutorily
            authorized constitutional sentence in effect at the time of
            the appellant's crimes, as any higher sentence would
            violate appellant's rights under the Due Process, Ex Post
            Facto and Equal Protection Clauses of the United States
            and Pennsylvania Constitutions.

      (5)   Whether the PCRA Court erred by determining that the
            appellant's PCRA petition was untimely because appellant
            is entitled to the "after- discovered evidence" exception to
            the timeliness requirement of 42 Pa.C.S. §9545(b)(1)(ii)
            because if the after discovered evidence, the testimony of
            Chikeesha Johnson, was presented at trial the
            Commonwealth could not meet its burden to prove the
            appellant guilty of every element of murder of the second
            degree beyond a reasonable doubt.

      (6)   Whether the PCRA Court erred by failing to conduct an
            evidentiary PCRA hearing because there are material
            issues of fact in dispute.

      It is well recognized that a petition for PCRA relief, including a second

or subsequent petition, must be filed within one year of the date the

judgment becomes final.       See 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There are,

however, exceptions to the time requirement; where the petition alleges,

and the petitioner proves, that an exception to the time for filing the petition

is met, the petition will be considered timely.      These exceptions include

interference by government officials in the presentation of the claim, after-

discovered facts or evidence, and an after-recognized constitutional right.

See 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii).    A PCRA petition invoking

one of these exceptions must “be filed within 60 days of the date the claims

could have been presented.”        See 42 Pa.C.S.A. § 9545(b)(2).           The

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timeliness requirements of the PCRA are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely petitions. Commonwealth

v. Robinson, 837 A.2d 1157 (Pa. 2003).

       Brabham’s judgment of sentence became final, for purposes of the

PCRA, on July 21, 1999, when the time expired for him to file a petition for

writ of certiorari with the United States Supreme Court. See 42 Pa.C.S.A. §

9545 (b)(3); Sup. Ct. R. 13. Thus, Brabham had until July 21, 2000, to file

a PCRA petition.      Because Brabham did not file his petition until April 25,

2005, the trial court correctly concluded that his petition is facially untimely.

       Brabham’s first three issues concern application of the United States

Supreme Court case, Miller v. Alabama, 132 S.Ct 2455 (2012), to his

untimely PCRA petition under the PCRA’s newly recognized constitutional

rights exception. See 42 Pa.C.S. § 9545(b)(1)(iii).

       In Miller, the Supreme Court held that “the Eighth Amendment forbids

a sentencing scheme that mandates life in prison without possibility of parole

for juvenile offenders.”         Id. at 2469.    However, in Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013), our Supreme Court held that the

constitutional right announced in Miller does not apply retroactively to cases

on collateral appeal.4      Consequently, Brabham cannot rely upon Miller or
____________________________________________


4
   The United States Supreme Court has since denied certiorari in
Cunningham. See Cunningham v. Pennsylvania, 134 S.Ct. 2724 (U.S.
2014). However, on March 23, 2015, the Supreme Court granted certiorari
in Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), which again
(Footnote Continued Next Page)


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subsection 9545(b)(1)(iii) to establish jurisdiction over his untimely PCRA

petition.

      Brabham’s next claim alleges that sentencing a juvenile to life without

the possibility of parole violates the Due Process, Ex Post Facto and Equal

Protection Clauses of the United States and Pennsylvania Constitutions. In

Commonwealth v. Lawrence, 99 A.3d 116 (Pa. Super. 2014), our Court

held “that these [constitutional] arguments fall into the category of ‘a

sentencing issue that presents a legal question [rather than a claim that the]

sentence[ is] illegal.’"     Therefore, Brabham’s claim is not cognizable under

the PCRA; he is not entitled to relief. See 42 Pa.C.S. § 9543(2).

      Brabham next claims that he properly pled and proved the “after

discovered evidence” exception, 42 Pa.C.S. § 9545(b)(1)(ii), to warrant

relief on his untimely petition. Specifically, he asserts that the testimony of

Chikeesha Johnson, memorialized in a February 3, 2010 affidavit, would

have completely exonerated him of his second-degree murder conviction.5

      In order to qualify for the after-discovered facts exception to the

timeliness requirement, a petitioner must establish that:       (1) he did not

                       _______________________
(Footnote Continued)

presents the Miller retroactivity question. Nonetheless, until the United
States Supreme Court issues its decision, we are bound by Cunningham.
5
 Specifically, Johnson alleges in her affidavit that Brabham: was impaired
by drug and/or alcohol on the night of the murder; was under extreme
emotional distress after his grandfather’s funeral; and was “set up” by
Reeves.



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J-S70036-15



know the facts upon which he based his petition; and (2) he could not have

learned those facts earlier with the exercise of due diligence.        See 42

Pa.C.S. § 9545(b)(1)(ii).   The exception focuses on “newly discovered facts,

not on a newly discovered or newly willing source for previously known

facts.” Commonwealth v. Johnson, 863 A.2d 423, 27 (Pa. 2004).

      In determining whether a new trial should be granted based on newly-

discovered evidence, it is the PCRA petitioner's burden to:

      [d]emonstrate [by a preponderance of the evidence] that the
      evidence: (1) could not have been obtained prior to the
      conclusion of the trial by the exercise of reasonable diligence;
      (2) is not merely corroborative or cumulative; (3) will not be
      used solely to impeach the credibility of a witness; and (4) would
      likely result in a different verdict if a new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).

      Brabham claims that since he has been incarcerated from the time he

was arrested in 1992, at the age of 16, he had no way of uncovering the

facts found in Johnson’s affidavit. Moreover, he asserts that because he was

“totally reliant on counsel who failed to conduct any investigation,” he could

not have learned of these facts earlier with the exercise of due diligence.

      Despite his claim that he could not have learned about Johnson’s

testimony sooner, Brabham asserts that trial counsel “should have known

about the existence of this witness” and that “he failed to contact her or

interview her.” Essentially, this is a veiled ineffectiveness claim that cannot

now be resurrected in an untimely PCRA petition. See Commonwealth v.

Pursell, 749 A.2d 911 (Pa. 2000) (claims of ineffective assistance of counsel


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do not automatically qualify pursuant to exceptions to one-year time

limitation provided in sections 9545(b)(1)(i)-(iii) of PCRA).

       Moreover, because Brabham acknowledges that this witness could

have been found sooner, and because he fails to specify when he exactly

learned about Johnson’s testimony, it fails to pass the due diligence prong of

section 9545(b)(1)(ii), as well as the 60-day requirement under section

9545(b)(2). See Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super.

2010).

       Finally, Brabham contends that the trial court improperly failed to

conduct an evidentiary hearing on his PCRA petition because there are

material issues of fact in dispute.            A court may dismiss a PCRA petition

without a hearing, and after proper notice is given to the parties, when:

       [T]he judge is satisfied from this review [of the petition] that
       there are no genuine issues concerning any material fact
       and that the defendant is not entitled to post-conviction
       collateral relief, and no purpose would be served by any
       further proceedings.

Pa.R.Crim.P. 907(1) (emphasis added).               Having concluded Brabham has

raised no genuine issues concerning material fact that would entitle him to

PCRA relief, the court properly dismissed his petition without a hearing.

       Order affirmed; motion to withdraw denied.6


____________________________________________


6
  On November 10, 2015, counsel filed in this Court a motion noting stating
that “[p]ursuant to appellant’s request, I respectfully request that this Court
consider appellant’s Reply Brief as filed and permit me to withdraw as
(Footnote Continued Next Page)


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J-S70036-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015


                       _______________________
(Footnote Continued)

counsel for Mr. Brabham in this matter.” Motion for Permission to Withdraw
as Counsel, 11/10/15, at 3. While counsel may wish to withdraw from this
collateral appeal, she has not satisfied the requirements to do so as set forth
in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and recently
updated in Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).
Specifically, in order to withdraw, PCRA counsel must: 1) attach a “no-
merit” letter to counsel’s application to withdraw as counsel; 2) list each
claim the petitioner wishes to have reviewed in the “no-merit” letter and
detail the nature and extent of counsel's review of the merits of each of
those claims; 3) set forth in the "no-merit" letter an explanation of why the
petitioner's issues are meritless; and 4) contemporaneously forward to the
petitioner a copy of the application to withdraw, which must include (i) a
copy of both the "no-merit" letter, and (ii) a statement advising the PCRA
petitioner that, in the event the trial court grants the application of counsel
to withdraw, petitioner has the right to proceed pro se, or with the
assistance of privately retained counsel. Friend, 896 A.2d at 615.
       In this case, counsel has filed an advocate’s brief, not a compliant
Turner/Finley “no-merit” letter. See Commonwealth v. White, 674 A.2d
253, 256 (Pa. Super. 1996). Accordingly, we deny counsel’s petition to
withdraw.     Likewise, because counsel is still representing Brabham on
appeal, we cannot accept as filed or consider Brabham’s pro se reply brief.
See Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011); see also
Pa.R.Crim.P. 576 (outlining procedure by which pro se documents submitted
to court by represented defendant shall be forwarded to defendant’s
counsel); Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984)
(holding that criminal defendant's pro se actions have no legal effect while
he or she remains represented by counsel.).



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