J-S61028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL HARRISON

                            Appellant                 No. 561 WDA 2014


                Appeal from the PCRA Order of February 6, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0007837-1999


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED OCTOBER 31, 2014

       Michael Harrison appeals the February 6, 2014 order that dismissed

without a hearing his petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

       Attendant to Harrison’s direct appeal, the trial court summarized the

facts of the case as follows:

       On March 7, 1994, Kevin Lee stole a four-door, 1986 Olds
       Cutlass Cierra and drove it to Isaac Butler’s house in the Larimer
       Avenue section of Pittsburgh. There[, Harrison], Lee and Butler
       discussed perpetrating a retaliation shooting to avenge the death
       of Butler’s brother, who had been killed in December, 1992, in a
       shooting by rival CRIP gang members.

       [Harrison] gave Butler a .380 semi-automatic pistol. Lee had a
       sawed-off shotgun. [Harrison] drove Lee and Butler to the area
       of Lincoln Avenue where they turned up Dean Street. There
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     they observed Byron Patton and Jason Gaines walking down the
     street. Either Lee or Butler yelled at [Harrison] to stop the car,
     and they got out while [Harrison] remained in the car.
     [Harrison] heard four shots from the handgun, a pause,
     screaming, and a loud blast consistent with a shotgun being
     fired.1 Lee and Butler ran back to the car and [Harrison] drove
     away.
       1
           On May 14, 1998, [Harrison] gave a statement to
       Pittsburgh Homicide Detective Thomas Foley, in which he
       essentially confessed to being an accomplice to first degree
       murder.

                                 *    *    *

     Officers William Gorman and Charles Johnson arrived at the
     scene at 10:30 P.M. They found Patton on the porch of 3528 ½
     Dean Street with a gunshot wound to the head and Gaines shot
     in the neck, shoulder and arm. Two large caliber casings were
     found adjacent to the porch area. Three .380 shell casings and a
     bullet fragment were found on the sidewalk.

     [Harrison] drove back to Butler’s house, where the three men
     stayed for a couple of hours and discussed getting rid of the
     vehicle. Around 3:00 A.M., Lee took the shotgun and left.
     [Harrison] hid the .380 under the porch of an abandoned house
     across the street from Butler’s house. [Harrison] and Butler
     drove the car to Washington Boulevard, turned off under the
     Lincoln Avenue bridge and abandoned it. As they were doing so,
     the police pulled up and [Harrison] and Butler escaped up a
     flight of stairs. Officer Scott Curly recovered the vehicle and
     found a .380 casing in a vent in the windshield.

     In November, 1994, a .380 semi-automatic was recovered in a
     desk in a dormitory area assigned to Travis Hill at the Keystone
     Job Corps Center in Luzerne County. Hill lived in the Larimer
     section of Pittsburgh, and while home for Thanksgiving, a friend
     told him that a gun was hidden under a rock between two
     abandoned houses.       The gun, cartridge casings and bullet
     fragment were submitted to the Allegheny County Crime Lab for
     testing. The casings and fragment were found to have been
     fired from the gun.

     Byron Patton was pronounced dead at 1:33 A.M. on March 8,
     1994, at Presbyterian University Hospital. His body was taken to
     the Allegheny County Coroner’s Office where an autopsy was

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     performed by Dr. Eric Vey. The cause of death was a gunshot
     wound to the head.

Trial Court Opinion (“T.C.O.”), 12/18/2000, at 2-3 (citations to record

omitted). Harrison was seventeen years old at the time of the murder.

     On March 29, 2000, following a jury trial, Harrison was found guilty of

first-degree murder. 18 Pa.C.S.A. § 2501(a). That same day, Harrison was

sentenced to life in prison. Harrison filed a direct appeal. On February 29,

2004, this Court affirmed his judgment of sentence.     Commonwealth v.

Harrison, 622 WDA 2002, slip. op. at 13 (Pa. Super. Feb. 19, 2004). On

March 19, 2004, Harrison filed a petition for allowance of appeal with the

Pennsylvania Supreme Court. That petition was denied on June 17, 2004.

Commonwealth v. Harrison, 853 A.2d 360 (Pa. 2004) (Table).

     On March 16, 2005, Harrison timely filed a first PCRA petition.

Counsel was appointed and filed an amended petition. On July 27, 2006, the

PCRA court dismissed Harrison’s petition without a hearing. On August 28,

2006, Harrison filed a notice of appeal.    On March 11, 2008, this Court

affirmed the PCRA court’s order. Commonwealth v. Harrison, 953 A.2d

599 (Pa. Super. 2008) (Table).    Harrison filed a petition for allowance of

appeal which was denied by the Pennsylvania Supreme Court on November

17, 2008. Commonwealth v. Harrison, 960 A.2d 837 (Pa. 2008) (Table).

     On July 13, 2012, Harrison filed the instant PCRA petition.          On

November 6, 2013, the PCRA court filed its notice of its intention to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907. Harrison filed a



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response to the Rule 907 notice. On December 14, 2013, the PCRA court

gave Harrison leave to amend his PCRA petition and re-issued its Rule 907

notice.   Harrison filed another response.       On January 17, 2014, the PCRA

court gave leave for Harrison to further amend his petition and again re-

issued its Rule 907 notice. On February 6, 2014, the PCRA court dismissed

the PCRA petition without a hearing.

       On March 26, 2014, Harrison filed a notice of appeal.1 The PCRA court

did not order a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a) opinion, the PCRA court

issued a statement indicating that it dismissed Harrison’s PCRA petition

because it was untimely.

       Harrison raises one issue for our review: “Did [the PCRA] court

erroneously interpret Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455

[2012], in its conclusion that Miller is not retroactive dismissing PCRA as

untimely?” Harrison’s Brief at viii (emphasis removed).

       Before we reach the merits of Harrison’s issue on appeal, we first must

ensure we have jurisdiction to do so. The PCRA time limits are jurisdictional,

and must be strictly construed, regardless of the potential merit of the
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1
       Although Harrison’s notice of appeal was docketed on March 26, 2014,
it is postmarked on March 3, 2014. Because Harrison is pro se and in
prison, he is entitled to the benefit of the prisoner mail box rule and we
consider his appeal timely because it was mailed prior to the deadline for
filing even though it was docketed after the deadline. See Commonwealth
v. Jones, 700 A.2d 423, 426 (Pa. 1997).



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claims asserted.    Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.

Super. 2011).      A court lacks jurisdiction to reach the merits of a PCRA

petition if it is untimely. Id.

      Despite facial untimeliness, a PCRA petition will be considered timely if

the petitioner pleads and proves one of the three exceptions to the one-year

time limit enumerated in subsection 9545(b), which provides:

      (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.

      (2) Any petition invoking an exception provided in
      paragraph (1) shall be filed within 60 days of the date the claim
      could have been presented.

42 Pa.C.S.A. § 9545(b).      When an appellant files a facially untimely PCRA

petition, and fails to plead and prove one or more of the exceptions to the

PCRA’s one-year jurisdictional time limit, the petition is untimely and we

must deny the appellant relief. Commonwealth v. Gamboa-Taylor, 753



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A.2d 780, 783 (Pa. 2000). Even when one of the exceptions may apply to a

given petition, it will excuse the untimeliness only if the petition was filed

within sixty days of the date that the conditions underlying the exception

came to light. Id. at 784.

      Here, Harrison’s judgment of sentence became final on or about

September 15, 2004, when the time period in which he could file a petition

for certiorari with the United States Supreme Court expired. Therefore, he

had until on or about September 15, 2005 to file a timely PCRA petition.

This petition, filed on July 13, 2012, facially is untimely.

      However, Harrison has pleaded that an exception applies; to wit, that

Miller   provides     a   new   constitutional   right.        See   42   Pa.C.S.A.

§ 9545(b)(1)(iii).    Because Miller was filed on June 25, 2012, Harrison’s

petition was filed within the sixty-day time period as delineated in 42

Pa.C.S.A. § 9545(b)(2). In Miller, the Supreme Court held that mandatory

life sentences without the possibility of parole for juvenile offenders violate

the Eighth Amendment’s prohibition against cruel and unusual or excessive

punishments.     Miller, 132 S. Ct. at 2469.     The Court declined to address

whether its holding applied retroactively to sentences administered prior to

the Court’s ruling.

      Our Supreme Court has held that Miller’s mandate does not apply

retroactively.   Commonwealth v. Cunningham, 81 A.3d 1, 10-11 (Pa.

2013). To establish an exception to the PCRA time bar, the petitioner must

plead and prove that the constitutional right has been recognized by the

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United States or Pennsylvania Supreme Court and “has been held by that

court to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). We explained

in Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014):

      Recently, in Cunningham, our Supreme Court held that the
      constitutional right announced by the United States Supreme
      Court in Miller does not apply retroactively. 81 A.3d at 10.
      Consequently, [a]ppellant cannot rely upon Miller or subsection
      9545(b)(iii) to establish jurisdiction over his untimely PCRA
      petition in any Pennsylvania court.          Hence, we lack the
      jurisdiction to review the merits of [a]ppellant’s issues . . . .

Id. at 243.

      Because Harrison is unable to prove that an exception applies, his

PCRA petition is untimely. The PCRA court did not err in treating it as such,

and it lacked jurisdiction over the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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