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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KERRY PURNELL,                             :
                                               :
                       Appellant               :   No. 1267 EDA 2018


                  Appeal from the PCRA Order, April 10, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-1001971-1992.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 11, 2019

        Kerry Purnell appeals pro se from the order that denied as untimely his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§ 9541-46. We affirm.

        The pertinent facts and procedural history are as follows: On the evening

of September 2, 1992, when he was 22 years old, Purnell shot and killed the

two victims in their Philadelphia apartment because they allegedly participated

in an earlier burglary of Purnell’s own apartment. On May 14, 1993, following

a bench trial, Purnell was convicted of two counts of first-degree murder and

possession of an instrument of crime. On February 15, 1994, the trial court

sentenced Purnell to an aggregate term of life in prison. Purnell filed a timely

appeal to this Court, and, on October 1, 1998, we affirmed his judgment of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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sentence. Commonwealth v. Purnell, 726 A.2d 1082 (Pa. Super. 1998)

(unpublished memorandum). On April 12, 1999, our Supreme Court denied

his petition for allowance of appeal. Commonwealth v. Purnell, 794 A.2d

361 (Pa. 1999).

       On August 3, 2012, Purnell filed a pro se PCRA petition in which he

sought relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Although the petition was

untimely, Purnell asserted that he could establish the “new constitutional

right” exception to the PCRA’s time bar.         42 Pa.C.S.A. § 9545(b)(1)(iii).1

Purnell later attempted to withdraw the petition.2

       On October 2, 2013, Purnell filed a “Federalized Amended PCRA Petition”

in which he claimed that he met the “newly-discovered evidence” exception

to the PCRA’s time bar. 42 Pa.C.S.A. § 9545(b)(1)(ii). According to Purnell,

he had only recently learned that he was illegally sentenced under a repealed

statute and that he was confined even though there was no written sentencing

order.     The certified record reveals that Purnell filed two additional

amendments that essentially raised the same issue. The PCRA court had yet

to appoint PCRA counsel to assist Purnell in his quest for post-conviction relief.

____________________________________________


1Although this petition does not appear in the certified record, within his brief
Purnell confirms that he originally sought relief under Miller and cited to the
new constitutional right time-bar exception. See Purnell’s Brief at 10.

2 There is no indication in the record that the PCRA court ever granted this
request.


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      On March 11, 2016, Purnell filed a “Petition for Leave to Amend First

Petition under the [PCRA]. Within this petition, Purnell asserted that, in light

of Montgomery v. Louisiana, decided on January 25, 2016, his otherwise

untimely petition met the “new constitutional right” time-bar exception at

section 9545(b)(1)(iii).    In addition, Purnell stated, “It would be a strong

Impropriety [sic] not to apply the ruling that came down in [Miller, supra],

when clearly the scientist [sic] confirmed that the pre frontal cortex is among

the last regions of the brain to mature, and further stated that prefrontal

cortex is not fully mature until an individual reaches his or her twenties.”

      On     July   28,    2016,   Purnell   filed   a   “Petition   for   Writ   of

Mandamus/Extraordinary Relief,” addressed to our Supreme Court, in which

he noted that, despite his filing of his amended petition in October 2013 the

PCRA court had not appointed him counsel or otherwise moved on his petition.

In response, the PCRA court appointed counsel on December 7, 2016. On

June 5, 2017, PCRA counsel filed a “no-merit” letter and motion to withdraw,

pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc), opining that Purnell’s PCRA petition was untimely and met no time-bar

exception.

        On June 12, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of

its intention to dismiss Purnell’s PCRA petition as untimely filed. Purnell filed

a response, as well as a supplement thereto. In his initial response, filed on

June 21, 2017, Purnell stated that he had yet to receive a copy of PCRA

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counsel’s Turner/Finley letter. In addition, Purnell raised a claim of “actual

innocence, and averred that he had asked PCRA counsel to file a motion for

DNA testing pursuant to 42 Pa.C.S.A. section 9543.1.                    Finally, Purnell

requested a Grazier hearing so that he could challenge PCRA counsel’s alleged

ineffectiveness. In his supplemental response, filed on June 26, 2017, Purnell

noted that he had still not received the Turner/Finley letter, and requested

that the PCRA court send him a copy.

       The PCRA court directed counsel to send Purnell a copy of the

Turner/Finley letter.        On September 18, 2017, the PCRA court issued a

second Rule 907 notice. Purnell did not file a response. By order entered

April 22, 2018, the PCRA court dismissed Purnell’s PCRA petition. This appeal

followed.     Purnell never filed a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.3         Although the PCRA court found waiver, on this

basis, it nevertheless addressed the timeliness of Purnell’s PCRA petition in its

Rule 1925(a) opinion.

       Before addressing the merits of Purnell’s substantive claims on appeal,

we must first address whether the PCRA court correctly concluded that

Purnell’s PCRA petition was untimely filed.

       The    timeliness     of   a   post-conviction   petition   is     jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

____________________________________________


3 Purnell claims that he gave his Rule 1925(b) statement to prison officials but
they did not mail it. See Purnell’s Brief at 32.


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Generally, a petition for relief under the PCRA, including a second or

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

becomes final unless the petition alleges, and the petitioner proves, that an

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

9545(b)(1)(i), (ii), and (iii), is met.4 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).5            Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
____________________________________________


4   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

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

5 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking a time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Purnell’s petition.


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521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal). Pennsylvania law makes clear that no court has jurisdiction

to hear an untimely PCRA petition. See Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003).

      Here, Purnell’s judgment of sentence became final on July 11, 1999,

ninety days after our Supreme Court denied his petition for allowance of

appeal, and the time to file a petition for writ of certiorari with the United

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Purnell

had until July 11, 2000, to file a timely petition. As he filed the petition at

issue in 2016, it is patently untimely unless Purnell has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.         See

Hernandez, supra.

      Purnell has failed to establish any exception to the PCRA’s time bar. He

asserts that he has established the newly-discovered fact exception in that

the “new scientific evidence” discussed in Miller, supra, should apply equally

to defendants sentenced to life without parole who were twenty-five years of

age and younger when they committed murder.

      This claim fails for several reasons. Initially, we note that Purnell did

not raise this claim in his PCRA petition, As noted above, although Purnell

previously raised the section 9545(b)(ii) exception, he did so with regard his

recent discovery of the lack of a written sentencing order, not based upon




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Miller, supra. Thus, Purnell inappropriately raises this claim for the first time

on appeal. See Pa.R.A.P. 302(a), Burton, supra.

      In addition, it is now well settled that judicial decisions are not “facts”

for purposes of satisfying this time-bar exception to the PCRA.             See

generally, Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011). Moreover,

the “new” scientific evidence upon which Purnell relies from Miller was also

referenced by the United States Supreme Court in its previous decisions

involving juveniles, as early as 2005. See Roper v. Simmons, 543 U.S. 551

(2005). Thus, Purnell cannot establish that he filed his PCRA petition within

sixty days of discovering this “new” scientific evidence.

      As we recently reiterated, this Court has refused to extend Miller to

defendants who were at least eighteen years of age at the time of the

underlying crime. See Commonwealth v. Lee, 206 A.3d 1, 11 (Pa. Super.

2019) (en banc) (holding that “age is the sole factor in determining whether

Miller applies to overcome the PCRA time-bar”). Moreover, this Court has

repeatedly rejected his argument regarding the brain development of post-

adolescents (over age 18). See, e.g., Commonwealth v. Pew, 189 A.3d

486 (Pa. Super. 2018); Commonwealth v. Woods, 179 A.3d 37, (Pa. Super.

2017).

      Finally, Purnell’s alternative theories are meritless. Although he argues

an equal protection violation, this Court has rejected this argument.       See

generally, Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super.

2018) (en banc). In addition, while Purnell asserts “actual innocence” and

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relies on McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), this Court has found

this theory has no application to the PCRA statute. See Commonwealth v.

Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016) (explaining decisions

pertaining to federal habeas corpus law, such as McQuiggin, are irrelevant

to our construction of the PCRA’s timeliness provisions).       Lastly, Purnell’s

argument that his PCRA petition should be considered due to a “miscarriage

of interest justice” provides him no relief.     See Burton, 936 A.2d at 527

(explaining that there is no “miscarriage of justice” exception to the timeliness

requirements of the PCRA).

       For all of the above reasons, Purnell’s PCRA petition was untimely, and

the PCRA court correctly concluded that it lacked jurisdiction to consider

Purnell’s substantive issues.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/11/19


____________________________________________


6 To the extent Purnell raises arguments regarding DNA testing, we agree with
the PCRA court that he did not properly raise this claim below, and that he
otherwise has not established all the requirements for such a request. See
PCRA Court Opinion, 12/21/18, at 5-6. Although Purnell claims to have filed
such a motion in 2004, it does not appear in the certified record.


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