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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
ALEXIS RODRIGUEZ,                          :          No. 2799 EDA 2018
                                           :
                          Appellant        :


           Appeal from the PCRA Order Entered September 26, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0716259-1989


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 19, 2019

        Alexis Rodriquez appeals pro se from the September 26, 2018 order

entered in the Court of Common Pleas of Philadelphia County denying his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court set forth the following procedural history:

              On August 8, 1990, a jury found [appellant] guilty of
              first-degree murder, possession of an instrument of
              crime, and criminal conspiracy.[1] [Appellant] was
              sentenced to mandatory life imprisonment without the
              possibility of parole. No direct appeal was filed.

              On February 28, 1996, [appellant] filed his first
              pro se PCRA petition, asking that his appellate rights
              be reinstated nunc pro tunc. This request was
              granted and [appellant] filed a direct notice of appeal.
              On December 31, 1997, the Superior Court affirmed

1   18 Pa.C.S.A. §§ 2502(a), 903 and 907, respectively.
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             [appellant’s] judgment of sentence. On January 22,
             1998, [appellant] filed a timely petition for allowance
             of appeal to the Pennsylvania Supreme Court; this
             was denied on July 14, 1998. [Appellant] did not seek
             further review before the US Supreme Court. Thus,
             his judgment of sentence became final on October 13,
             1998.

             On February 22, 2002, [appellant] filed his second
             pro se PCRA petition, raising various claims of
             ineffective assistance of counsel, prosecutorial
             misconduct, actual innocence, severance, and
             violations of his Miranda[2] rights. This petition was
             dismissed as untimely and without merit based upon
             appointed counsel’s Finley[3] letter.      [Appellant]
             appealed this dismissal, the Superior Court affirmed
             on April 18, 2005.

             On February 18, 2005, [appellant] filed a pro se writ
             of habeas corpus in federal court. On August 24,
             2006, the court dismissed the writ, holding that
             [appellant’s] writ was patently untimely. [Appellant]
             appealed this decision; the United States Court of
             Appeals for the Third Circuit affirmed the denial on
             March 31, 2006.

             On August 13, 2007, [appellant] filed a third pro se
             PCRA petition. This was dismissed without hearing as
             untimely on March 27, 2009. On April 20, 2009,
             [appellant] appealed this dismissal to the Superior
             Court. On March 5, 2010, the Superior Court affirmed
             the dismissal, finding that [appellant’s] petition was
             untimely without merit.

             On June 2, 2010, [appellant] filed a fourth pro se
             PCRA petition, claiming newly discovered evidence in
             order to overcome the time bar. On May 13, 2011,
             this petition was dismissed without hearing as
             untimely. On June 9, 2011, [appellant] appealed this
             dismissal to the Superior Court; the dismissal was

2   Miranda v. Arizona, 384 U.S. 436 (1966).

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


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          affirmed on August 27, 2012. On September 26,
          2012, [appellant] filed a timely petition for allowance
          of appeal to the Pennsylvania Supreme Court. His
          request for allocator was denied on March 18, 2013.

          On April 5, 2013, [appellant] filed his fifth pro se
          PCRA petition, claiming relief under Miller v.
          Alabama, 132 S.Ct. 455 (2012). On December 20,
          2013, this petition was dismissed without hearing as
          untimely. [Appellant] appealed this dismissal to the
          Superior Court, who affirmed the dismissal on
          September 24, 2014. The Superior Court held that
          the newly recognized constitutional right exception to
          the one year time bar did not apply based upon
          Miller. Moreover, Miller did not apply to [appellant]
          as he was 18 years old when he committed the crime
          at issue. On October 24, 2014, [appellant] filed a
          timely petition for allowance [of] appeal to the
          Pennsylvania Supreme Court. This was denied on
          January 21, 2015.

          On March 7, 2016, [appellant] filed his sixth pro se
          PCRA petition, claiming relief under Miller and
          Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
          [Appellant] amended his petition on June 22, 2017;
          July 17, 2017; May 7, 2018; and July 18, 2018. On
          April 4, 2018, James Lloyd, Esquire was appointed as
          PCRA counsel. On August 29, 2018, Mr. Lloyd filed a
          Finley letter, arguing that [appellant’s] sixth PCRA
          petition was untimely without exception and the
          issues he raised were without merit. On August 30,
          2018, this Court dismissed [appellant’s] petition
          without hearing based upon counsel’s Finley [letter].




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            On September 17, 2018, [appellant] filed a Notice of
            Appeal to the Superior Court.[4]

PCRA court opinion, 12/11/18 at 2-4 (footnote omitted). The PCRA court did

not require appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court did file its Rule 1925(a)

opinion on December 11, 2018.

      Appellant raises the following issues for our review:

            1.    Does treatment as a “minor[,”] “youthful
                  offender[,”] entitle [appellant] the same
                  treatment as his “juvenile” co-defendants under
                  “equal protection” of the law?

            2.    Were the standards of “beyond a reasonable
                  doubt” lessened as to the charge of conspiracy,
                  when the court erroneously charged the jury as
                  to “accomplice liability”?




4  A review of the record demonstrates that on August 30, 2018, the PCRA
court provided appellant notice of its intent to dismiss the PCRA petition
pursuant to Pa.R.Crim.P. 907 and gave appellant 20 days in which to file a
response. On September 17, 2018, and prior to the entry of an order denying
appellant’s PCRA petition, appellant filed a pro se notice of appeal leaving
blank the date of the order being appealed. Appellant also filed a response to
the Rule 907 notice. On September 26, 2018, the PCRA court denied
appellant’s PCRA petition. Therefore, appellant’s notice of appeal shall be
treated as filed on September 26, 2018. See Pa.R.A.P. 905(a)(5) (stating,
“[a] notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”). We note that while appellant’s notice of
appeal lacks the date of the order being appealed, as required by
Pa.R.A.P. 904, it is apparent from appellant’s brief that he is appealing the
order of September 26, 2018, denying his PCRA petition. As a result, we need
not quash the appeal for failing to comply with Pa.R.A.P. 904.            See
Pa.R.A.P. 105 (stating that Pennsylvania appellate rules of procedure “shall be
liberally construed to secure the just, speedy and inexpensive determination
of every matter to which they are applicable.”).


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Appellant’s brief at ii.

      In order to be timely filed, a PCRA petition, including second and

subsequent petitions, must be filed within one year of when an appellant’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment

becomes final at the conclusion of direct review, including discretionary review

in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of the time for seeking the review.”

42 Pa.C.S.A. § 9545(b)(3). The Supreme Court of Pennsylvania has held that

the PCRA’s time restriction is constitutionally sound. See Commonwealth

v. Cruz, 852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has

instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition is untimely, a court lacks jurisdiction over the petition.         See

Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.Super. 2014) (holding

that courts do not have jurisdiction over an untimely PCRA).

      Here, appellant’s judgment of sentence became final on October 13,

1998, 90 days after our supreme court denied discretionary review and the

deadline for filing a petition for writ of certiorari in the Supreme Court of the

United States expired.5       See 42 Pa.C.S.A. § 9545(b)(3); see also

U.S. Sup. Ct. R. 13(1) (stating, “A petition for a writ of certiorari seeking


5 We note that the 90th day was a federal holiday (see 5 U.C.S. § 9103(a)),
so the judgment of sentence became final the next day, October 13, 1998.
See U.S. Sup. Ct. R. 30(1).


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review of a judgment of a lower state court that is subject to discretionary

review by the state court of last resort is timely when it is filed with the Clerk

within 90 days after entry of the order denying discretionary review.”).

Therefore, appellant’s PCRA petition filed on March 7, 2016, nearly 18 years

after his judgment of sentence became final, is patently untimely.

      If a PCRA petition is untimely filed, the jurisdictional time-bar can only

be overcome if appellant alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017); see also Wharton, 886 A.2d at

1126 (citation omitted).     The three narrow statutory exceptions to the

one-year time-bar are as follows: “(1) interference by government officials in

the presentation of the claim; (2) newly discovered facts; and (3) an

after-recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d

231, 233-234 (Pa.Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).         A

petition invoking an exception to the time-bar must be filed within 60 days of

the date that the claim could have been presented.6           See 42 Pa.C.S.A.

§ 9545(b)(2).    If appellant fails to invoke a valid exception to the PCRA


6 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions to the PCRA jurisdictional
time-bar was extended from 60 days to one year. See 42 Pa.C.S.A.
§ 9545(b)(2). This amendment, however, applies only to claims arising one
year prior to the effective date of the amendment; that is to say, arising on
December 24, 2017, or later. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Because appellant filed his sixth PCRA petition on March 7, 2016, this
amendment does not apply, and appellant must have filed his petition within
60 days of the date the claim could have been presented.


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time-bar, courts are without jurisdiction to review the petition or provide relief.

See Spotz, 171 A.3d at 676.

      Here, appellant attempts to assert an exception to the jurisdictional

time-bar under Section 9545(b)(1)(iii), which permits a petitioner to seek

relief when there 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.” See 42 Pa.C.S.A. § 9545(b)(1)(iii); see also appellant’s brief

at 1-5. Specifically, appellant maintains that his sentence is unconstitutional

pursuant to the United States Supreme Court’s decision in Miller v. Alabama

567 U.S. 460 (2012), which held that a sentence of life imprisonment without

the possibility of parole is unconstitutionally cruel and unusual punishment

when imposed on defendants convicted of murder who were under the age of

18 at the time of their crimes.      See Miller, 567 U.S. at 465; see also

appellant’s brief at 1-5. In Montgomery v. Louisiana,              U.S.      , 136

S.Ct. 718 (2016), the United States Supreme Court held that its decision in

Miller applied retroactively to cases on state collateral review.             See

Montgomery, 136 S.Ct. at 732.




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      Instantly, appellant was 18 years and 11 months old at the time he

committed the murder, and therefore, Miller provides no relief.7           See

Cintora, 69 A.3d 759, 764 (Pa.Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013) (table) (holding that petitioners who were 18 years old or older at

the time they committed murder are not within the ambit of Miller); see also

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding

that a petitioner’s assertion of the time-bar exception set forth in Section

9545(b)(1)(iii) must be rejected because the constitutional rule rendering

mandatory sentences of life imprisonment without possibility of parole on

juveniles unconstitutional applied only to those defendants who were under

the age of 18 when the offenses were committed).

      Therefore, the PCRA court lacked jurisdiction to review appellant’s sixth

PCRA petition, and we may not review the petition on appeal.8

      Order affirmed.




7  Inasmuch as appellant presents a “neurobiological adolescence” or
“immature brain” argument and invites this court to expand the holding of
Miller to defendants over the age of 18 when they committed the offense but
who demonstrate “mental immaturity,” we have declined to do so. See
Commonwealth v. Lee, 206 A.3d 1, 10 (Pa.Super. 2019) (en banc) (holding
that, “we find it untenable to extend Miller to one who is over the age of 18
at the time of his or her offense for purposes of satisfying the
newly-recognized constitutional right exception in section 9545(b)(1)(iii)”).

8 In his second issue, appellant claims that the trial court erroneously charged
the jury. (Appellant’s brief at 7-11.) This claim does not assert one of the
three statutory exceptions to the PCRA time-bar.              See 42 Pa.C.S.A.
§ 9545(b)(1)(i-iii); see also Brandon, 51 A.3d at 233-234. As a result,
appellant’s second claim may not be reviewed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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