J-S42024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MIGUEL A. MARTINEZ

                            Appellant                  No. 208 EDA 2015


                Appeal from the PCRA Order December 23, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1002093-1988

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 21, 2015

        Appellant, Miguel A. Martinez, appeals from the December 23, 2014

order, dismissing as untimely his fourth petition for relief filed pursuant to

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

careful review, we affirm.

        On April 17, 1990, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole for first-degree murder1

and other offenses, committed when Appellant was 15 years old. This Court

affirmed Appellant’s judgment of sentence on March 11, 1993, and our

Supreme Court denied his petition for allowance of appeal on February 11,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(a).
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1994.     Commonwealth v. Martinez, 628 A.2d 453 (Pa. Super. 1993)

(unpublished memorandum), appeal denied, 641 A.2d 309 (Pa. 1994). As a

result, his judgment of sentence became final on May 12, 1994, when the

filing period for a petition for a writ of certiorari with the United States

Supreme Court expired. See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S.

Ct. R. 13(1).

        Thereafter, Appellant filed his first PCRA petition on February 7, 1995,

which was dismissed.      This Court affirmed that order on March 11, 1997,

and our Supreme Court denied Appellant’s petition for allowance of appeal

on July 29, 1997. Commonwealth v. Martinez, 695 A.2d 438 (Pa. Super.

1997) (unpublished memorandum), appeal denied, 699 A.2d 734 (Pa.

1997). Appellant filed his second PCRA petition on August 22, 2002, which

the PCRA court dismissed, and this Court affirmed that order on October 23,

2003.     Commonwealth v. Martinez, 839 A.2d 1157 (Pa. Super. 2003)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court. Appellant filed his third PCRA petition on

May 28, 2010, which the PCRA court dismissed.         Appellant did not file an

appeal from that order.




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        On July 5, 2012, Appellant filed, pro se, a patently untimely fourth

PCRA petition that is the subject of this appeal.2          See 42 Pa.C.S.A.

§ 9545(b)(1) (providing that a PCRA petition must be filed within one year of

the date the judgment becomes final). After a series of amended petitions,

the PCRA court issued a notice to dismiss the petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907 on November 12,

2014.     Appellant filed a timely response on November 19, 2014.          On

December 23, 2014, the PCRA court dismissed Appellant’s PCRA petition as

untimely.    Appellant timely filed, pro se, a notice of appeal on January 5,

2015.3

        Here, the PCRA court lacked jurisdiction to consider the merits of

Appellant’s untimely PCRA petition unless one “of the three limited

exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A.

§ 9545(b)(1)(i), (ii), and (iii), [apply].”      Commonwealth v. Lawson, 90

A.3d 1, 5 (Pa. Super. 2014) (citation omitted). In an attempt to plead one

____________________________________________


2
  We treat July 5, 2012 as the filing date under the prisoner mailbox rule, as
the certified record contains the postmark from the envelope in which the
petition was mailed. See generally Commonwealth v. Chambers, 35
A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d
715 (Pa. 2012).
3
  The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court issued its Rule 1925(a) opinion on
January 22, 2015.




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of the time-bar exceptions, Appellant argues that the United States Supreme

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), applies

retroactively to his case.        Appellant’s Brief at 3.4   Even if we were to

construe this issue as arguing that a time-bar exception applies, our

Supreme Court has rejected this retroactivity argument.5 See generally 42

Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v. Cunningham, 81 A.3d 1,

11 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.

2724 (2014).6 Further, to the extent Appellant argues that this Court should


____________________________________________


4
  Appellant’s brief does not contain pagination. For ease of review, we have
assigned each page a corresponding page number. Further, Appellant’s brief
does not comply with the Pennsylvania Rules of Appellate Procedure.
Specifically, it is not formatted in accordance with Rule 2111, nor does it
contain certain sections required, such as the order in question, a statement
of the scope and standard of review, a statement of questions involved, a
statement of the case, a summary of argument, and a copy of the Rule
1925(b) statement or an averment that such a statement was not
requested. See generally Pa.R.A.P. 2111, 2115-2118. This Court demands
that pro se litigants substantially comply with our Rules of Appellate
Procedure. Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa. Super.
2014), appeal denied, 109 A.3d 679 (Pa. 2015). Nonetheless, we decline to
find waiver, and we address the issues in Appellant’s brief that we were able
to discern.
5
  On March 23, 2015, the Supreme Court granted certiorari in Montgomery
v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller
retroactivity question. Nonetheless, until the United States Supreme Court
issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.
6
  Appellant argues that we should revisit our Supreme Court’s decision in
Cunningham, but this Court, as an intermediate appellate court, lacks the
judicial power to review our Supreme Court’s decisions. See, e.g., Walnut
(Footnote Continued Next Page)


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give broader retroactive effect to Miller under Danforth v. Minnesota, 552

U.S. 264 (2008), and that Miller violates equal protection, this Court lacks

the judicial power to decide those questions for the purposes of the PCRA

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar exception

for “a constitutional right that was recognized by the Supreme Court of the

United States or the Supreme Court of Pennsylvania … and has been held by

that court to apply retroactively[]”) (emphasis added); Commonwealth v.

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (explaining substantive claims

cannot overcome Section 9545(b)(1)(iii) and Cunningham), appeal denied,

101 A.3d 103 (Pa. 2014). As a result, the PCRA court lacked jurisdiction to

consider the merits of Appellant’s claims.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s fourth PCRA petition as untimely.    Accordingly, the

PCRA court’s December 23, 2014 order is affirmed.

      Order affirmed.




                       _______________________
(Footnote Continued)

St. Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.
2011).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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