J-S84006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

SHA P. DEVON,

                          Appellant                     No. 55 EDA 2018


          Appeal from the PCRA Order Entered December 12, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0742731-1989


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 02, 2019

      Appellant, Sha P. Devon, appeals from the order dismissing, as

untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      Appellant was convicted following a non-jury trial of first-degree murder

and conspiracy for his role in the shooting death of David Allen that occurred

in 1989. Consequently, the trial court sentenced Appellant to a mandatory

term of life imprisonment. On October 5, 1993, this Court affirmed Appellant’s

judgment of sentence, and the Pennsylvania Supreme Court subsequently

denied his petition for allowance of appeal. Commonwealth v. Devon, 638

A.2d 266 (Pa. Super. 1993) (unpublished memorandum), appeal denied, 641

A.2d 307 (Pa. 1994). Appellant did not seek further review from the United

States Supreme Court.
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      As noted by the Commonwealth,

      From 1997 to 2009, [Appellant] filed three unsuccessful PCRA
      petitions. [He] filed the instant PCRA petition [(hereinafter, the
      “Petition”)], his fourth, on August 1, 2012. The PCRA court … filed
      a [Pa.R.Crim.P.] 907 notice [of its intent to dismiss the Petition]
      on September 19, 2017. [Appellant] filed a response to the notice
      on October 2, 2017. On December 12, 2017, the PCRA court
      dismissed [the P]etition. This appeal followed.

Commonwealth’s Brief at 3-4. The PCRA court did not order Appellant to file

a statement pursuant to Pa.R.A.P. 1925(b). The court filed its Rule 1925(a)

opinion on December 12, 2017.

      Appellant now presents the following questions for our review, verbatim:

      I. DID THE TRIAL COURT ERRED, WHEN IT FOUND APPELLANT
      NOT GUILTY OF MURDER WITH RESPECT TO THE MURDER BILL
      CONSTITUTES AS AN ACQUITTEL? AND DID HE THE TRIAL
      COURT VIOLATE RULE CRIM. PROC. RULE 1102(A)2 42 PA. C.S.A.
      LIMITING THE TRIAL COURT TO CONSIDERATION OF
      POSTVERDICT MOTIONS IN ARREST OF JUDGMENT OR GRANTING
      OF NEW TRIAL?

      II. DID THE TRIAL COURT ERRED WHEN IT ALLOW THE
      PROSECUTOR ANOTHER OPPORTUNITY TO PRESENT MORE
      EVIDENCE ON SPECIFIC INTENT AND ACCOMPLICE LIABILITY
      AFTER COURT HAD ENTERED INTO MID-TRIAL JUDGMENT AND
      ANNOUNCE VERDICTS AND ACQUITTED THE APPELLANT OF
      FIRST DEGREE MURDER IN THE MORNING SESSION OF
      APPELLANT’S NONJURY TRIAL?    AND IN THE AFTERNOON
      CHANGED THE ORIGINAL VERDICT, AND BY DOINGSO CAUSED
      APPELLANT TO BE WRONGFULLY CONVICTED OF FIRST DEGREE
      MURDER WHEN HE SENTENCES HIM TO LIFE IMPRISONMENT AND
      VIOLATED THE DUE PROCESS OF THE LAW?

      III. DID THE TRIAL COURT ERRED WHEN IT REEXAMINATION OF
      EVIDENCE DUE TO THE STATE NOT BEING ABLE TO PROVE
      SPECIFIC INTENT AND ACCOMPLICE LIABILITY BEYOND A
      REASONABLE DOUBT?

Appellant’s Brief at VII.


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      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.         Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of the Petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address its

merits.   Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).

Under the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the following exceptions set forth in 42

Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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 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 Supreme Court of Pennsylvania after the time
             period provided in this section and has been held by
             that court to apply retroactively.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        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. § 9545(b)(2).1

       The Petition under consideration is patently untimely.        Accordingly,

Appellant must plead and prove the applicability of at least one of the

timeliness exceptions set forth in Section 9545(b)(1).           In the Petition,

Appellant asserted a single claim, arguing that he was entitled to a new trial

and/or resentencing pursuant to Miller v Alabama, 567 U.S. 460 (2012). In

Miller, the United States Supreme Court held that the Eighth Amendment to

the United States Constitution prohibits any sentencing scheme that mandates

life imprisonment without the possibility of parole for juvenile homicide

offenders.    Subsequently, in Montgomery v. Louisiana, 136 S.Ct. 718

(2016), the Supreme Court held that its decision in Miller announced a new

substantive constitutional rule that must apply retroactively on state collateral

review. Montgomery effectively overruled the Pennsylvania Supreme Court’s

decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), which

had held that Miller did not apply retroactively and, therefore, did not satisfy

the PCRA’s timeliness exception set forth in Section 9545(b)(1)(iii).    Thus, it

is now well-established that Miller can satisfy Section 9545(b)(1)(iii),

assuming a PCRA petition was filed within 60 days of Montgomery. See

____________________________________________


1 Section 9545(b)(2) was recently amended to extend this period from 60
days to 1 year; however, at the time Appellant filed the Petition, the 60-day
rule was in effect.

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Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016) (“Because

the Montgomery decision was needed to clarify Miller, … we will use the

date of the Montgomery decision … to measure the 60–day rule of Section

9545(b)(2) (requiring petitioner asserting timeliness exception to file petition

within 60 days of date claim could have been presented).”).

      Here, the PCRA court denied Appellant’s Petition because,
      [a]lthough the United States Supreme Court in Montgomery …
      ruled that Miller has retroactive effect in cases on state collateral
      review, [Appellant] was over the age of eighteen at the time of
      the offense, placing his sentence outside the reach of the Supreme
      Court’s Miller decision. Therefore, [Appellant] has failed to
      invoke [Section 9545(b)(1)(iii)].

PCRA Court Opinion, 12/12/17, at 1 (single page).

      We agree with the PCRA court.        “The Miller decision applies to only

those defendants who were under the age of 18 at the time of their crimes.”

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citation

and quotation marks omitted). Accordingly, we ascertain no error in the PCRA

court’s dismissal of the Petition on this basis.

      Appellant raises three questions for our review in his brief that are

unrelated to the Miller argument that he presented in the Petition. All three

issues pertain to allegations of trial court error, and none of them were

presented   in   the   Petition.   Thus,   these   claims   are   waived.     See

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (holding that a PCRA

petitioner may not raise new claims by merely supplementing a pending PCRA

petition without court authorization because to do so would “wrongly subvert



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the time limitation and serial petition restrictions of the PCRA”); Pa.R.Crim.P.

902(B) (providing that the “[f]ailure to state such a ground [for relief] in the

[PCRA] petition shall preclude the defendant from raising that ground in any

proceeding for post-conviction collateral relief”).

      Nevertheless, Appellant did raise the first claim in his response to the

PCRA court’s Rule 907 notice. However, even if this claim was not waived due

to Appellant’s failure to raise it in the Petition, such a claim cannot satisfy an

exception to the PCRA’s time limitations. First, it is immediately apparent that

Appellant’s claim—that the trial judge violated various constitutional rights by

altering the verdict on first-degree murder—was known to Appellant when it

occurred on the last day of his trial in 1990. Accordingly, Appellant cannot

satisfy 42 Pa.C.S. § 9545(b)(2), which, at the time Appellant filed his petition,

required that all claims be filed within 60 days of the date they could have

been first presented. Indeed, Appellant could not possibly meet the 1-year

deadline in the amended version of Section 9545(b)(2), either.

      Second, even if Appellant could meet a timeliness exception for this

claim, he would not be eligible for relief, as he previously raised the same

claim during his direct appeal. See Commonwealth v. Devon, No. 03716

PHL 92, unpublished memorandum at 1 (stating the claim); 3 (ruling that the

claim lacked merit) (Pa. Super. filed October 5, 1993). “To be eligible for

relief under th[e PCRA], the petitioner must plead and prove by a

preponderance of the evidence all of the following: … (3) That the allegation

of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3).

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      Accordingly, because Appellant cannot prove a timeliness exception to

the PCRA’s time limitations, and/or because he is otherwise ineligible for relief

under the PCRA, the PCRA court did not err in dismissing the Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/19




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