J-S70012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL WILSON,

                            Appellant                  No. 1469 EDA 2015


                    Appeal from the PCRA Order May 6, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1214232-1970


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.:                       FILED DECEMBER 01, 2015

        Appellant, Michael Wilson, appeals pro se from the order denying his

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

§§ 9541–9546. Appellant seeks relief under Miller v. Alabama, 132 S. Ct.

2455 (2012). We affirm.

        Appellant is serving a life sentence following his 1971 jury conviction

of murder of the first degree for the shooting death of a rival gang member,

on October 10, 1970.            Our Supreme Court affirmed the judgment of

sentence on December 5, 1974.              (See Commonwealth v. Wilson, 329

A.2d 881, 886 (Pa. 1974)).

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S70012-15


       Appellant presents one question for our review:

       Did the [PCRA] court err in not granting Appellant’s request for
       relief under Post Conviction Relief Act petition pursuant to Miller
       v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 [2012] [?]

(Appellant’s Brief, at 6) (most capitalization removed).

       He maintains that because he was a juvenile at the time of the

murder, his sentence should be vacated and his case remanded for

resentencing.1 We disagree.

       Our standard of review of a PCRA court’s order is whether the

determination of the court is supported by the evidence of record and is free

of legal error.     See Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.

Super. 2011). For a question of law our scope of review is plenary and our

standard of review is de novo. See Commonwealth v. Jackson, 30 A.3d

516, 518 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012).

       Preliminarily, Appellant’s petition is untimely on its face. 2   Appellant

does not expressly plead and prove a statutory exception to the time bar.


____________________________________________


1
  Appellant was born on April 4, 1953. (See Docket, CP-51-Cr-1214232-
1970, at 1). On the day of the murder he was seventeen years, six months,
and six days old.
2
  Appellant filed the instant petition on July 17, 2012. This is his fifth
petition for collateral relief. The conviction became final no later than
January 6, 1975, after the time for seeking discretionary review in the
United States Supreme Court had passed. See Wilkins v. United States,
441 U.S. 468 (1979) (petitions for certiorari untimely unless filed within
thirty days, pursuant to then U.S.Sup.Ct.R. 22 (effective July 1, 1954,
(Footnote Continued Next Page)


                                           -2-
J-S70012-15


(See Appellant’s Brief, at 7, see also Commonwealth’s Brief, at 8).

However, we construe his argument liberally as a claim that he is entitled to

the benefit of a newly recognized constitutional right under Miller, supra.

See 42 Pa.C.S.A. § 9545(b)(1)(iii).

        Miller held that “the Eighth Amendment forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile

offenders[.]”       Miller, supra at 132 S. Ct. 2469.               However, our Supreme

Court    has       held     that   Miller    does    not    apply    retroactively.    See

Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied,

134     S.   Ct.    2724      (2014).       Appellant      argues   that,   notwithstanding

Cunningham, the holding in Miller is a substantive rule which applies

retroactively to his case.          (See Appellant’s Brief, at unnumbered page 9).

We disagree. Cunningham is controlling precedent.3

        Order affirmed.




                          _______________________
(Footnote Continued)

through June 30, 1980; now replaced by U.S.Sup.Ct.R. 13, which provides
for a ninety-day period)); see also 42 Pa.C.S.A. § 9545(b)(3).
3
  “This Court is bound by existing precedent under the doctrine of stare
decisis and continues to follow controlling precedent as long as the decision
has not been overturned by our Supreme Court.” Commonwealth v.
Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citing Commonwealth v.
Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014).



                                               -3-
J-S70012-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




                          -4-
