J-S03039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DUANE L. ELIAM                             :
                                               :   No. 1712 EDA 2016
                       Appellant

                    Appeal from the PCRA Order May 6, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0636012-1990


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 09, 2018

        Appellant Duane L. Eliam appeals pro se from the Order entered in the

Court of Common Pleas of Philadelphia County on May 6, 2016, denying as

untimely his petition filed pursuant to the Post Conviction Relief Act.1      We

affirm.

        The PCRA court set forth the relevant background and procedural history

herein as follows:

               On November 6, 1991, following a non-jury trial before
        Judge Lisa A. Richette, [Appellant] was adjudicated guilty of
        murder of the first degree and possessing an instrument of crime.
        Sentencing was deferred pending the filing of post-verdict motions
        and pre–sentencing evaluations. On June 8, 1993, [Appellant’s]
        post-verdict motions were denied; [Appellant] received a
        mandatory sentence of life imprisonment on the murder-of-the-
        first-degree charge and a concurrent sentence of two and one-half
        (2½) to five (5) years of imprisonment on the charge of
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       possessing an instrument of crime. At trial, [Appellant] was
       represented by Daniel Greene, Esquire.
              On June 8, 1993, [Appellant] filed a Notice of Appeal, and
       on May 11, 1994, the Pennsylvania Superior Court affirmed
       [Appellant’s] judgments of sentence. On July 7, 1995,
       [Appellant’s] petition for allowance of appeal was denied by the
       Pennsylvania Supreme Court.
              On August 6, 2012, [Appellant] filed a petition pursuant to
       the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.1
       [Appellant] subsequently received court-appointed counsel who
       filed a No-Merit Letter pursuant to Commonwealth v. Finley,
       379 Pa. Super. 390, 550 A.2d 213 (1988) (en banc) (establishing
       the procedure for withdrawal of court-appointed counsel from
       representing a petitioner on collateral review). On May 6, 2016,
       after conducting a review of the record, evidence, and argument
       of counsel, the PCRA court denied [Appellant’s] Petition as
       meritless and permitted counsel to withdraw representation.2
              On May 27, 2016, [Appellant] filed a pro se Notice of Appeal.
       [Appellant] also filed, sua sponte, a Concise Statement of Matters
       Complained of on Appeal Pursuant to Pa.R.A.P. § 1925(b), in
       which he raised the claims of his trial counsel's ineffectiveness and
       averred that he was eligible for relief under Montgomery v.
       Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), as revised
       (Jan. 27, 2016).[2]
___
       1[Appellant’s]
                   criminal docket reflects that he filed a PCRA Petition
       on January 21, 1995, ahead of receiving the Pennsylvania
       Supreme Court’s decision on his petition for allowance of appeal;

____________________________________________


2 In Montgomery, the Supreme Court declared its prior holding in Miller v.
Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d. 407 (2012) is a
substantive rule of constitutional law to which state collateral review courts
were required as a constitutional matter to give retroactive effect.
Montgomery v. Louisiana, ___ U.S. ____, ____, 136 S.Ct. 718, 736, 193
L.Ed.2d 599, ___ (filed January 25, 2016, as revised on January 27, 2016).
In Miller, the Supreme Court had held that “mandatory life without parole for
those under the age of 18 at the time of their crimes violated the Eighth
Amendment’s prohibition on cruel and unusual punishment.” Miller, 132
S.Ct. at 2460.




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       his PCRA Petition was, therefore, dismissed without prejudice as
       premature on January 23, 1995.
       2The dismissal occurred more than twenty days after [Appellant]

       was served with notice of the forthcoming dismissal of his PCRA
       petition. Pa.R.Crim.P. 907.

Trial Court Opinion, filed 12/27/16, at 1-2.

        In his brief, Appellant presents the following two (2) issues for our

review:3

       I.      Whether [ ] Appellant deserved relief based on the
       diminished culpability of his adolescent mind, as defined and
       provided in Roper, Miller and [indecipherable] at 18 years old?

       II.      Whether counsels [sic] ineffectiveness warrants a Lafler
       violation.

Brief for Appellant at 1 (unnumbered).

       When reviewing the propriety of an order denying PCRA relief, this Court

is limited to a determination of whether the evidence of record supports the

PCRA court’s conclusions and whether its ruling is free of legal error.

Commonwealth v. Robinson, 635 Pa. 592, 603, 139 A.3d 178, 185 (2016).

This Court will not disturb the PCRA court’s findings unless there is no support

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014).




____________________________________________


3 Appellant fails to include a statement of the questions involved segment in
his appellate brief as is required under Pa.R.A.P. 2111(a)(4) and, rather,
includes these handwritten claims as subparts of the argument portion
thereof.



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      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden of pleading and proving an applicable statutory exception.          If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the   merits   of   the   petition.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (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 of sentence becomes final, unless the
            petition alleges and the petitioner proves that:

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

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        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). In addition, any petition attempting to invoke one

of these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

        Herein, this Court affirmed Appellant’s judgment of sentence on May 11,

1994.     Commonwealth v. Eliam, 647 A.2d 262 (Pa.Super. 1994). The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on July 7, 1995. Commonwealth v. Eliam, 541 Pa. 634, 663 A.2d

686 (Pa. 1994). Thus, Appellant’s judgment of sentence became final ninety

days thereafter on or about October 9, 1995, at which time Appellant’s time

for filing a petition for writ of certiorari with the United States Supreme Court

expired.4 See 42 Pa.C.S.A. § 9545(b)(3) (“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 time for seeking the review”); see also U.S. Sup.Ct.R. 13.1.     A

timely petition had to be filed by October 9, 1996; therefore, the instant PCRA

petition filed on August 6, 2012, is patently untimely, and the burden fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.           See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke


____________________________________________


4   October 7, 1995, was a Saturday.

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a statutory exception to the PCRA time-bar, a petitioner must properly plead

and prove all required elements of the exception).

       In this vein, Appellant first purports to invoke the “newly recognized

constitutional right” exception to the time-bar and contends he is entitled to

relief as he is serving an illegal sentence under Montgomery. In a disjointed

and at times unintelligible argument, Appellant maintains his first issue

presents a “matter of first impression giving [t]his Honorable Court jurisdiction

[t]hrough its enheritant [sic] power for pure question of law.”           Brief for

Appellant at 8 (unnumbered).           He further reasons that the United States

Supreme Court’s decisions in “Miller, Roper & Graham force[] states to prepare

themselves for numerous variation[s] of juvenile issues founded on the same

principle” in light of the fact that “there are literally ([t]housands) of convicted

18 year old’s [sic] in the Pennsylvania prison system.                  Id. a 10

(unnumbered).5

       Appellant’s assertions fail to satisfy the requirements necessary for

invoking the newly-recognized constitutional right exception pursuant to



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5 Appellant apparently is referencing Graham v. Florida, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010), wherein the United States Supreme
Court held that the imposition of a sentence of life imprisonment without the
possibility of parole on juvenile non-homicide offenders violated the Eighth
Amendment and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005) wherein the Supreme Court held that the execution of
individuals who were under eighteen years of age at the time of their capital
crimes is prohibited by the Eighth Amendment applicable to the states through
the Fourteenth Amendment to the United States Constitution.

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section 9545(b)(1)(iii), as Miller itself precludes this Court from granting him

relief under the PCRA. As stated previously, the Miller holding pertains only

to juveniles who were under eighteen years of age when they were sentenced

to life imprisonment without parole for committing the crime of murder. As

Appellant acknowledged in his PCRA petition, he was “born on December 5,

1971[,]” and “[t]he crime for which he was convicted [ ] occurred 69 days

past his eighteenth birthday.” See Post Conviction Relief Act Petition, filed

August 6, 2012, at ¶ 3. Therefore, the holding in Miller does not create a

newly recognized constitutional right that can serve as the basis for relief for

Appellant. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Miller, supra ___ U.S. at

____, 132 S.Ct. at 2460. See also Commonwealth v. Furgess, 149 A.3d

90, 94 (Pa.Super. 2016) (holding the rule rendering life imprisonment

sentences imposed on juveniles unconstitutional did not apply to a defendant

who was admittedly nineteen years of age at time of the offenses);

Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013), appeal denied,

622 Pa. 764, 81 A.3d 75 (2013) (holding petitioner’s argument that Miller

should be extended to include defendants who were over the age of eighteen

and whose brains were immature at the time of their offenses did not render

his PCRA petition timely pursuant to the newly-recognized constitutional right

exception to the PCRA time-bar).




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       Next, Appellant argues trial counsel’s ineffectiveness “warrants a Lafler

Violation.”6 Brief for Appellant at 10 (unnumbered). Appellant posits plea

counsel failed to apprise him of “the consequences of First Degree Homicide

[] [i]nstead misinforming, [a]nd misleading that a reasonable sentence could

be imposed, even after a conviction of First Degree Homicide” and states he

was under the mistaken belief his co-defendant was going to testify on his

behalf. Id. at 15-16 (unnumbered). Appellant further maintains he filed the

instant PCRA petition within sixty days of when this claim might have been

asserted, and in doing do attaches an affidavit dated April 14, 2016,

purportedly completed by his co-defendant Vincent Davis stating neither

committed the murder. Id. at 11 (unnumberecd). It is noteworthy that the

affidavit is not notarized and no signature of Vincent Davis appears thereon.

See Brief for Appellant at “Appendix (B)”

       At the outset, we note that Appellant did not raise an ineffectiveness of

counsel challenge or reference an affidavit in his PCRA petition, and instead

discusses them for the first time in his statement of matters complained of on

appeal.    See “1925(B) Concise Statement of Matters Complained of on

Appeal” filed 5/23/16, at 1 (unnumbered).        Pa.R.A.P. 302(a) provides that



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6 In Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed. 2d 398
(2012), the United States Supreme Court held a defendant’s Sixth
Amendment right to counsel requires effective assistance of counsel at all
crucial stages of a criminal proceeding and extends to the plea-bargaining
process. Id. at 1384-85.

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“[i]ssues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”

      Even if Appellant properly had raised these claims below, they would

afford him no relief, for “it is well-settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.” Commonwealth v. Wharton, 584 Pa. 576, 588,

886 A.2d 1120, 1127 (2005); see also Commonwealth v. Fowler, 930 A.2d

586, 591 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)

(allegations of counsel’s ineffectiveness will not overcome the jurisdictional

timeliness requirements of the PCRA). Moreover, this Court emphasized in

Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa.Super. 2013) that

Lafler did not create a new constitutional right.    We specifically stated in

Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa.Super. 2013) that

neither Lafler nor its companion case Missouri v. Frye, 132 S.Ct. 1399, 182

L.Ed.2d 379 (2012) established a newly-recognized constitutional right that

would provide an appellant with an exception to the PCRA timeliness

requirements. Moreover, aside from his bald allegations, Appellant makes no

effort in his appellate brief to explain pursuant to 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii) how the facts upon which his ineffectiveness claim is

predicated and the information contained in the purported affidavit were

unknown to him and could not have been ascertained by the exercise of due

diligence.


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     As Appellant has failed to plead and prove one of the aforementioned

exceptions to the PCRA time-bar, the courts of this Commonwealth are without

jurisdiction to offer Appellant any form of relief.    Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa.Super. 2011), appeal denied, 616 Pa. 634, 47

A.3d 845 (2012). Accordingly, the PCRA court properly denied Appellant’s

patently untimely PCRA petition without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




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