J-S38003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
DAMEON ELLIS                             :
                                         :
                    Appellant            :          No. 2025 EDA 2016

                    Appeal from the PCRA Order June 1, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0503111-1999


BEFORE:       GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                       FILED JUNE 14, 2017

      Appellant, Dameon Ellis, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

third petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. A jury convicted Appellant on November 13, 2000,

of one count of first-degree murder, two counts of attempted murder, and

related offenses, in connection with the December 2, 1998 killing of one man

and serious wounding of two others.          On November 14, 2000, a “death

qualified” jury sentenced Appellant to life imprisonment for the murder

conviction.     The court sentenced Appellant on January 23, 2001, to

additional terms of imprisonment for the remaining offenses.        This Court

affirmed the judgment of sentence on February 4, 2002, and the Supreme

Court denied allowance of appeal on July 16, 2002. See Commonwealth
___________________________

*Former Justice specially assigned to the Superior Court.
J-S38003-17


v. Ellis, 797 A.2d 1022 (Pa.Super. 2002), appeal denied, 569 Pa. 700, 805

A.2d 520 (2002). Since then, Appellant litigated two prior PCRA petitions,

both of which were ultimately unsuccessful.

      On August 20, 2015, Appellant filed the current, serial pro se PCRA

petition. The court issued Rule 907 notice on March 30, 2016. On June 1,

2016, the court dismissed Appellant’s PCRA petition as untimely. Appellant

timely filed a pro se notice of appeal on June 20, 2016. The court did not

order, and Appellant did not file, a concise statement per Pa.R.A.P. 1925(b).

      Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1).       A judgment of sentence is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). The

statutory   exceptions   to    the   PCRA    time-bar   allow   for   very   limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting a timeliness exception must file a petition within 60 days

of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

      Instantly, Appellant’s judgment of sentence became final on October

14, 2002, upon expiration of the time for filing a petition for writ of certiorari


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with the U.S. Supreme Court.      See U.S.Sup.Ct.R. 13.      Appellant filed the

current PCRA petition on August 20, 2015, which is patently untimely. See

42 Pa.C.S.A. § 9545(b)(1).     On appeal, Appellant attempts to invoke the

“new constitutional right” exception to the statutory time-bar per Section

9545(b)(1)(iii), claiming he is entitled to relief under Miller v. Alabama,

567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding sentence of

mandatory life imprisonment without possibility of parole for those under

age of 18 at time of their crimes violates Eighth Amendment’s prohibition on

cruel and unusual punishments) and Montgomery v. Louisiana, ___ U.S.

___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller applies

retroactively to cases on state collateral review).     Nevertheless, Appellant

advanced different arguments in his PCRA petition and did not raise or rely

on Miller or Montgomery.       Consequently, Appellant’s claims are waived.

See   Commonwealth        v.   Furgess,    149   A.3d   90   (Pa.Super.   2016)

(explaining asserted exceptions to PCRA time-bar must be raised in PCRA

petition and cannot be raised for first time on appeal).

      Moreover, Appellant admits he was 19 years old at the time of the

offenses at issue. Thus, Miller and Montgomery do not apply. This Court

has previously rejected Appellant’s argument that relief under Miller and

Montgomery should be extended to individuals under 25 years old because

the brain is not developed fully until that age. See Furgess, supra (holding

appellant who was 19 years old at time of offenses was not entitled to relief


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under Miller and Montgomery on collateral review; rejecting appellant’s

argument that he should be considered “technical juvenile”). Therefore, we

affirm the denial of PCRA relief.1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2017




____________________________________________


1
  To the extent Appellant relies on Alleyne v. United States, ___ U.S. ___,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that decision affords him no relief.
See Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)
(holding new constitutional rule announced in Alleyne is not substantive or
watershed procedural rule that warrants retroactive application to collateral
attacks on mandatory minimum sentences where judgment of sentence
became final before Alleyne was decided). Alleyne affords Appellant no
relief in any event, as Alleyne does not apply to the mandatory life
imprisonment sentence for first-degree murder. Appellant’s other challenges
to the legality of his sentence are unreviewable due to the untimeliness of
his petition. See Commonwealth v. Infante, 63 A.3d 358 (Pa.Super.
2013) (stating legality of sentence challenges brought under PCRA must first
satisfy PCRA’s time limits or exception to time-bar).



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