J-S51042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    Appellee               :
                                           :
             v.                            :
                                           :
EDWARDO ROSARIO,                           :
                                           :
                    Appellant              :             No. 274 MDA 2014

            Appeal from the PCRA Order entered on January 6, 2014
              in the Court of Common Pleas of Lancaster County,
                Criminal Division, No. CP-36-CR-0000626-1991

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 28, 2014

                                                   pro   se,   from   the    Order

dismissing his third Petition for relief pursuant to the Post Conviction Relief

                  See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1991, Rosario was convicted of murder of the second degree and

criminal conspiracy.1 The trial court sentenced Rosario to life in prison.

        This Court affirmed the judgment of sentence. See Commonwealth

v. Rosario, 633 A.2d 1224 (Pa. Super. 1993) (unpublished memorandum).

Rosario did not file a petition for allowance of appeal with the Supreme Court

of Pennsylvania.




1
    18 Pa.C.S.A. §§ 2502(b), 903.
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      Rosario filed his first PCRA Petition in 1996. The PCRA court denied

the Petition, and this Court affirmed on appeal.       See Commonwealth v.

Rosario, 736 A.2d 685 (Pa. Super. 1999) (unpublished memorandum).

      Rosario filed his second PCRA Petition in 2012. The PCRA court issued

a Notice of Intent to Dismiss, and dismissed the Petition without a hearing.

Rosario did not appeal the dismissal of this PCRA Petition.

      Rosario filed the instant PCRA Petition, pro se, on August 28, 2012.

On September 27, 2012, the PCRA court issued a Notice of Intent to Dismiss



Intent to Dismiss.    On January 6, 2014, the PCRA court dismissed the

Petition as untimely. Rosario filed a timely Notice of Appeal.

      On appeal, Rosario challenges the dismissal of his PCRA Petition,

raising a constitutional challenge to his sentence.2

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court

      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

                                                         including a second or

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


2
  In his appellate brief, Rosario did not include a Statement of Questions
Presented section.


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                                     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 time for seeking the

            Id. §

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.       Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).



time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Because Rosario

did not file the instant PCRA Petition until 2012, his Petition is facially

untimely.

     However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of

                                                              he claim could

                        Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

                                                                    Miller v.

Alabama, 132 S. Ct. 2455 (2012), and invokes the newly recognized

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii).   Brief for

Appellant at 1.     In Miller, the United States Supreme Court held that



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sentencing     schemes that    mandate    life   in prison     without   parole      for

defendants who committed their crimes while under the age of eighteen

violate   t

                  Miller, 132 S. Ct. at 2460. The Court reasoned that in light



mandatory      juvenile   sentencing   schemes    pose   too    great    a    risk    of

disproportionate punishment, in contravention of the Eighth Amendment.

Id. at 2469.

      Rosario avers that the Miller rationale should be extended to include

his sentence of life without the possibility of parole, even though he was

twenty-four years old at the time he committed the murder.                   Brief for

Appellant at 2-3. Rosario claims that his sentence was illegal, as it violated

the Equal Protection Clause of both the Pennsylvania and United States

Constitutions. Id. at 1.

      Rosario did not raise this claim, as required under the PCRA, within

sixty days of the date the Miller decision was filed.          See 42 Pa.C.S.A. §

9545(b)(2).      Accordingly, Rosario has failed to plead and prove the

exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome the




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untimeliness of his Petition.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2014




3
  In any event, the Supreme Court in Miller set forth a bright-line rule
holding mandatory sentences of life without parole unconstitutional for
defendants under the age of eighteen. Because Rosario was twenty-four
years old at the time he committed the murder, Miller does not apply.
Additionally, even if Rosario had been under age 18 at the time of the crime,
Miller does not apply retroactively. See Commonwealth v. Cunningham,
81 A.3d 1, 11 (Pa. 2013), cert. denied, 134 S. Ct. 2724 (2014) (holding that
Miller does not apply retroactively).


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