J-S01041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                   Appellee                    :
                                               :
            v.                                 :
                                               :
RAPHAEL TAN,                                   :
                                               :
                   Appellant                   :   No. 433 EDA 2019


                Appeal from the Order Entered January 2, 2019
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1103141-1996

BEFORE:      BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                            Filed: March 23, 2020

        Raphael Tan (Appellant) appeals from the January 2, 2019 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In March 2000, following a bench trial, Appellant was convicted of two

counts of first-degree murder, possessing an instrument of crime, criminal

conspiracy, and aggravated assault.            Appellant was sentenced to two

concurrent terms of life imprisonment for the murders, and concurrent terms

of five to ten years of imprisonment for aggravated assault and ten to

twenty years of imprisonment for conspiracy. On appeal, this Court affirmed

his judgment of sentence on November 8, 2001, and our Supreme Court

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*   Retired Senior Judge assigned to the Superior Court.
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denied his petition for allowance of appeal. Commonwealth v. Tan, 792

A.2d 619 (Pa. Super. 2001) (unpublished memorandum), appeal denied,

796 A.2d 982 (Pa. 2002). Appellant did not seek review before the Supreme

Court of the United States, and therefore, his judgment of sentence became

final in 2002. In the years following this Court’s affirmation of his judgment

of sentence, Appellant filed two PCRA petitions, but neither merited relief.

       On September 21, 2012, Appellant filed pro se the PCRA petition that

is the subject of this appeal.         In his petition, Appellant deemed that his

petition was filed timely and challenged his sentence based on the

constitutional right recognized by the United States Supreme Court in Miller

v. Alabama, 567 U.S. 460 (2012), that it is cruel and unusual punishment

to sentence a juvenile to a mandatory sentence of life imprisonment without

parole.     Pro se PCRA Petition, 9/21/2012, at 2-3.        Appellant contended,

citing a litany of legal authority without any factual averments, that even

though he was 21 when he committed the crimes, Miller applied to him.1

Id. at 2.

       On September 6, 2018, the PCRA court issued Appellant notice

pursuant to Pa.R.Crim.P. 907 that it planned to dismiss his petition without a



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1 Appellant mistakenly stated he was 21 years old at the time he committed
the crimes; however, he was 20 years old. Appellant was born October 4,
1972, and the crimes occurred on August 24, 1993.



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hearing as untimely filed.2 Appellant filed a response in which he attempted

to invoke the newly-recognized constitutional right exception to the PCRA’s

time bar.3 Appellant’s 907 Response, 9/20/2018, at 2 (citing Montgomery

v. Louisiana, 136 S.Ct. 718 (2016) (concluding that the Court’s holding in

Miller prohibiting mandatory life without parole sentences for juvenile

offenders applied retroactively)).

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2 The certified record offers no explanation for the almost six-year delay
between the filing of Appellant’s third PCRA petition and the issuance of the
PCRA Court’s Rule 907 notice. Our Supreme Court has made clear that
“[t]he PCRA court [has] the ability and responsibility to manage its docket
and caseload and thus has an essential role in ensuring the timely resolution
of PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa.
2012) (citing Commonwealth v. Porter, 35 A.3d 4, 24-25 (Pa. 2012)
(“[T]he court, not counsel, controls the scope, timing and pace of the
proceedings below.”)).

3   This exception provides as follows.

        (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:

                                           ***

              (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. § 9545(b)(1)(iii).




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      On January 2, 2019, the PCRA court dismissed Appellant’s petition as

untimely filed, stating that Appellant was unable to avail himself of the

newly-recognized constitutional right set forth in Miller because he was over

18 at the time he committed the murders.

      This timely-filed appeal followed.       The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), but complied with the mandates of Pa.R.A.P.

1925(a) by filing an opinion.

      On appeal, Appellant asks us to decide whether the PCRA court erred

by   dismissing   his   petition   as   untimely   filed,   and   argues   that   the

constitutional right recognized in Miller, which was made retroactively

applicable in Montgomery, should apply to him. Appellant’s Brief at 2-3.

Appellant argues, inter alia, that Miller should not be read so narrowly as to

confine its application to individuals under the age of 18, particularly

because individuals between the ages of 18 and 25 have the same type of

immaturity as young teenagers. Id. at 6-10.

      We review the court’s order mindful of the following.           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 of sentence is final

unless the petition alleges, and the petitioner proves, that an exception to

the time for filing the petition is met.      42 Pa.C.S. § 9545.       In addition,

exceptions must be pleaded within 60 days of the date the claim could have


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been presented.        42 Pa.C.S. § 9545(b)(2).4    Because the PCRA’s time

restrictions are jurisdictional in nature, neither this Court nor the PCRA court

has the power to address the merits of a petition if it is filed untimely and

the petitioner did not plead and prove an applicable time-bar exception.

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013).

       It is clear that Appellant’s petition filed on September 21, 2012 is

facially untimely; his judgment of sentence became final in 2002. Appellant

attempts to invoke Miller and Montgomery to argue that the newly-

recognized and retroactively-applicable constitutional right exception to the

PCRA’s time bar applies to him. Appellant’s Brief at 2-3, citing 42 Pa.C.S. §

9545(b)(1)(iii).    However, the arguments Appellant sets forth in his brief

have been resolved already by this Court and do not serve to establish the

newly-recognized and retroactively-applicable exception to the PCRA’s time

bar.   Because Appellant was 20 years old when he committed his crimes,

Miller does not apply and cannot be used to render his petition timely filed

pursuant to subsection 9545(b)(1). See Commonwealth v. Lee, 206 A.3d

1 (Pa. Super. 2019) (en banc) (holding that Miller applies only to

defendants who were under the age of 18 at the time of their crimes;
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4 Although inapplicable to this appeal, we note that subsection 9545(b)(2)
was amended on October 24, 2018, effective in 60 days (December 24,
2018), extending the time for filing from sixty days of the date the claim
could have been presented, to one year. See Act 2018, Oct. 24, P.L. 894,
No. 146, § 3.



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therefore, based on current law, Miller cannot be relied upon to establish

the PCRA time-bar exception at subsection 9545(b)(1)(iii) for those 18 and

older at the time of their crimes). Accordingly, the PCRA court did not err in

dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




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