J-S74003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
KEVIN SILAS                             :
                                        :
                  Appellant             :   No. 1162 EDA 2017

                Appeal from the PCRA Order March 8, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0624121-1981


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 22, 2018

     Kevin Silas appeals pro se from the March 8, 2017 order dismissing his

seventh PCRA petition as untimely. We affirm.

     On March 9, 1982, a jury convicted Appellant of murder in the second

degree, conspiracy, and robbery.    The facts giving rise to the convictions

were summarized by a prior panel of this Court.

     Appellant planned a robbery and his two co-conspirators carried
     it out. On November 14, 1980, the 93 year-old victim was
     robbed and beaten; she subsequently died as a result of the
     beating. After the robbery, the co-conspirators fled to Appellant's
     home.     At that time, Appellant was eighteen years and
     seventeen days old.

Commonwealth v. Silas, 120 A.3d 392 (Pa.Super. 2015) (unpublished

memorandum). On November 1, 1982, he was sentenced to a term of life

imprisonment. This Court affirmed judgment of sentence on June 14, 1988,

and he did not seek allowance of appeal.     Commonwealth v. Silas, 547
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A.2d 440 (Pa.Super. 1988) (table). Thus, Appellant’s judgment of sentence

became final on or about July 14, 1988.

      Appellant timely filed his first PCRA petition on July 6, 1989, which was

dismissed. His five subsequent PCRA petitions were dismissed. Appellant,

acting pro se, filed this, his seventh PCRA petition, on March 18, 2016. He

alleged that he received a sentence in excess of the lawful maximum and

sought correction of his sentence. He contended that, although he was over

eighteen years of age when he committed the crimes for which he received a

mandatory life sentence, the prohibition in Miller v. Alabama, 567 U.S. 460

(2012) against such a sentence for those under the age of eighteen, should

apply to him.

      Appellant acknowledged that his PCRA petition was filed more than

one year after his judgment of sentence became final. He alleged, however,

that his petition was filed within sixty days of newly-discovered facts and a

new   constitutional   right   held   to    be   retroactive   in   Montgomery v.

Louisiana, 136 S.Ct. 718 (2016).

      On May 16, 2017, the PCRA court served Rule 907 notice of its intent

to dismiss the petition on timeliness grounds. Appellant filed a response on

June 1, 2016, and a supplemental response on August 24, 2016, in which he

asserted new arguments in support of the timeliness of his petition.          On

March 8, 2017, after finding that Appellant failed to prove any of the

statutory exceptions to the PCRA’s jurisdictional time-bar, the court




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dismissed the petition.       Appellant timely appealed, and presents two

questions for our review.
      1. Did the PCRA court err in denying the instant petition as
         untimely filed when the new fact was filed within 60 days of
         its discovery, denying Appellant equal protection and due
         process of law, as the new scientific brain facts altered the
         entire case and was a change in law and facts for the
         exception to the timebar: 42 Pa.C.S.A. §9545(b)(1) (ii-iii),
         (2), and a new trial or hearing is required in the interest of
         justice?

      2. Did the PCRA court err in denying the instant petition as
         untimely filed when the new fact was filed within 60 days of
         its discovery, denying Appellant due process of law, as the
         new facts and change in guilty plea offer qualifies under 42
         Pa.C.S.A. §9545(b)(1)(ii-iii), (2), and a remand for Appellant
         to be discharged with time served, an evidentiary hearing is
         required in the interest of justice?

Appellant’s brief at v (unnecessary capitalization omitted).

      A PCRA petition must be filed within one year of the date when the

underlying judgment became final. 42 Pa.C.S. § 9545(b)(1). A judgment is

deemed final either at the conclusion of direct review or at the expiration of

the time for seeking review.     Id. at § 9545(b)(3).   The timeliness of the

petition is jurisdictional.   Commonwealth v. Williams, 105 A.3d 1234,

1239 (Pa. 2014) (reaffirming that PCRA's time restrictions are jurisdictional

in nature).

      Appellant’s judgment of sentence became final on July 14, 1988, thirty

days after this Court affirmed judgment of sentence since he did not seek

allowance of appeal from our Supreme Court.         The instant petition, filed

twenty-seven years later, is facially untimely, and Appellant concedes that



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fact. Nonetheless, Appellant contends that he pled and proved exceptions to

the statutory time bar. Those exceptions are:
      (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.

42 Pa.C.S. § 9545(b)(1)(i-iii).      In addition, the petitioner invoking an

exception must file a petition asserting it within sixty days of the date the

claim could have been presented. Id. at § 9545(b)(2).

      Appellant alleged that the facts upon which his claim was predicated

were unknown to him and could not have been ascertained with the exercise

of reasonable diligence.      He claimed to have recently learned of a

Pennsylvania   sentencing    statute,   18    P.S.   §1102.1(c),   which   treated

individuals like himself who were eighteen years of age at the time of the

commission of the offense, as juveniles. In conjunction with that argument,

Appellant maintained that he filed the instant petition within sixty days of

the Supreme Court’s January 25, 2016 decision in Montgomery v.

Louisiana, 136 S.Ct. 718 (2016), which held the new constitutional right




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involving the sentencing of juveniles announced in Miller, supra, to be

retroactive.

       The PCRA court found that Appellant’s reliance upon 18 Pa.C.S.

§1102.1(a), (c), was misplaced as that statute was enacted to address

individuals who were under the age of eighteen when they committed

murder, and who were convicted of that offense after June 24, 2012.

Appellant did not meet either criterion. The court also found that Appellant

could not rely upon Montgomery, which held Miller to be retroactive, to

avoid the time bar as Appellant did not plead or prove that he was under the

age of eighteen when he committed the murder.         Finally, the court also

rejected Appellant’s claim that the science of adolescent brain development

was a newly-discovered fact, noting that Miller was published in 2013, and

that the instant petition was filed long after the sixty-day deadline.1   The

PCRA court dismissed the petition as untimely, after concluding that none of

the timeliness exceptions applied and that it lacked jurisdiction to entertain

the petition.

       In reviewing an order denying post-conviction relief, we examine

“whether the trial court's determination is supported by evidence of record

and whether it is free of legal error.” Commonwealth v. Robinson, 139


____________________________________________


1   The PCRA court noted that the brain science alleged to be newly-
discovered was discussed in Roper v. Simmons, 125 S.Ct. 1183, 1195
(2005).



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A.3d 178, 185 (Pa. 2016). It is the petitioner's burden to allege and prove

that one of the timeliness exceptions applies.            Commonwealth v.

Edmiston, 65 A.3d 339, 346 (Pa. 2013). Whether a petitioner has carried

his burden is a threshold inquiry that must be resolved prior to considering

the merits of any claim. Id.

      In his petition, Appellant averred that, despite his due diligence, he

only acquired knowledge of the Pennsylvania statute providing that second-

degree murder no longer carried a sentence of life without parole for

defendants eighteen years old at the time of the offense on January 18,

2016, when he learned of the statute from the Phillips Black Project.           He

then filed the instant petition within sixty days. Based on Pennsylvania law,

Appellant contends that he is a “juvenile” entitled to the benefit of Miller.

      Appellant’s timeliness argument rises and falls on his contention that

his status as a constructive juvenile is a newly-discovered fact.     Accepting

that premise, he alleges that he is entitled to relief as a juvenile under

Miller, made retroactive in Montgomery.

      We note first that the sentencing statute upon which Appellant relies

does not treat eighteen year olds as juveniles.     Title 18 Pa.C.S. § 1102.1

provides in pertinent part:

      (c)    Second degree murder. — A person who has been
      convicted, after June 24, 2012, of a murder of the second
      degree, second degree murder of an unborn child or of murder
      of a law enforcement officer of the second degree and who was
      under the age of 18 at the time of the commission of the
      offense shall be sentenced as follows:


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18 Pa.C.S. § 1102.1 (emphasis added).         Appellant was convicted prior to

June 24, 2012, and he was not under the age of eighteen at the time he

committed the murder. Thus, the statute does not treat eighteen year olds

as juveniles, and Appellant’s newly-discovered fact is not a fact.

      Nor can Appellant rely upon Miller, held to be retroactive in

Montgomery, as it applied only to individuals who were under the age of

eighteen   when      they   committed   first-degree   murder,   and   who   were

sentenced to a mandatory term of life imprisonment without possibility of

parole. While Appellant could have sought PCRA relief in a petition premised

upon an extension of Miller to individuals over the age of eighteen within

sixty days of that decision, even a timely effort would have failed          See

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

who were older than eighteen when they committed murder “may not rely

upon [Miller] to bring themselves within the time-bar exception in Section

9545(b)(1)(iii)).”

      In his response to the Rule 907 petition, Appellant offered two new

arguments in support of the timeliness of his petition. First, he alleged that

science involving brain development constituted a newly-discovered fact for

purposes of the § 9545(b)(1)(ii) timeliness exception, that the information

became available on January 25, 2016, and that it applied retroactively




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pursuant to Montgomery, supra.2 He contends that the newly-discovered

scientific facts regarding brain development that were discussed in Miller,

Graham v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S.

551 (2005), rendered it impossible for him to have conspired with his two

juvenile cohorts, and therefore, he was statutorily innocent. In addition, he

maintains that the statements of his juvenile cohorts must be deemed

involuntary and unlawfully obtained since their brains were underdeveloped

at the time.

       The Commonwealth counters that Appellant waived this alternative

timeliness argument since he did not invoke it in his original PCRA petition

as required under 42 Pa.C.S. § 9545(b)(1), or seek leave to amend his

petition to assert them.        Commonwealth v. Derrickson, 923 A.2d 466,

468-69 (Pa.Super. 2007). Furthermore, while the Supreme Court decisions

relied upon by Appellant recognized new constitutional rights for juveniles

regarding sentencing, none of these decisions implicated a juvenile’s ability

to conspire or voluntarily waive his rights.      Finally, the Commonwealth

points out that Appellant did not file the instant petition within sixty days of
____________________________________________


2 Appellant mischaracterizes the holding in Montgomery v. Louisiana, 136
S.Ct. 718 (2016), as announcing that the “‘New Scientific Brain Facts’ from
Miller, Graham and Roper applied retroactively to all juvenile defendants in
the United States.” Appellant’s brief at 7. Montgomery held retroactive
the Supreme Court’s earlier holding in Miller, "that mandatory life without
parole for those under the age of 18 at the time of their crimes violates
the Eighth Amendment's prohibition on 'cruel and unusual punishments.'"
Miller v. Alabama, 567 U.S. 460, 465 (2012) (emphasis added).



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the date such a claim could have been presented, i.e., within sixty days of

the decisions in Miller, Graham and Roper, as required for newly-

discovered facts. Nor did he plead and prove that he could not obtain the

information earlier with the exercise of due diligence. Commonwealth v.

Albrecht, 994 A.2d 1091 (Pa. 2010).           The Commonwealth directs our

attention to Appellant’s sixth PCRA petition, filed in 2010, in which he relied

upon Graham, as proof that he knew of the brain science years before he

filed the instant petition.   See Commonwealth v. Silas, 120 A.3d 392

(Pa.Super. 2015) (unpublished memorandum).

      While Derrickson may provide some support for the Commonwealth’s

waiver argument, it would seem that Appellant’s response to the Rule 907

notice achieved the desired purpose.     Cf. Commonwealth v. Pitts, 981

A.2d 875 (Pa. 2009) (a petitioner alleging PCRA counsel ineffectiveness can

preserve the issue by including that claim in his Rule 907 response or raising

the   issue   while   the     PCRA   court    retains   jurisdiction);   accord

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). We will assume

arguendo that the issue was validly raised.

      We note that Appellant has conflated the second and third exceptions

to the time bar.   A newly-discovered fact is not a constitutional right.    A

petitioner relying upon a newly-discovered fact to avoid the time bar must

allege and prove that there were “‘facts’ that were 'unknown' to him" and

that he could not have ascertained those facts by the exercise of "due




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diligence."   Commonwealth v. Bennett, 930 A.2d 1264, 1270-1272 (Pa.

2007).

      Appellant’s claim that he only learned of the scientific facts regarding

brain development when he attended a program discussing it in January

2016, is not borne out by the record. He alleged in his 2010 PCRA petition

that his sentence of life imprisonment without parole was illegal under

Graham v. Florida, 560 U.S. 48 (2010) and the Eighth Amendment, and

that he learned of that decision on June 28, 2010.          In Graham, the

Supreme Court held that life sentences without parole for juvenile offenders

convicted of a non-homicide crime were unconstitutional under the Eighth

Amendment. In arriving at the conclusion, the Court favorably cited Roper,

supra, and its earlier finding that juveniles have lessened culpability due to

a “lack of maturity and an underdeveloped sense of responsibility.”        The

Graham Court acknowledged developments in psychology and brain science

that showed fundamental differences between juvenile and adult minds, and

the fact that the portions of the brain involved in behavior control continue

to mature through late adolescence.      Id. at 68-69.    To the extent that

Appellant is suggesting that Miller recognized a new constitutional right that

implicates a juvenile’s ability to conspire or voluntarily waive his rights due

to his developing brain, we reject that argument.

      Finally, Appellant argues that he is entitled to relief under Lafler v.

Cooper, 566 U.S. 156 (2012), because trial counsel was ineffective in the

advice he gave regarding a plea offer.       He contends that Montgomery

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made Lafler retroactive, and that the instant petition filed within sixty days

of Montgomery falls within the third timeliness exception.

      Appellant cannot evade the time bar merely by alleging ineffective

assistance of counsel.    Furthermore, since Lafler did not recognize a new

constitutional right, the third timeliness exception is inapplicable. Moreover,

Montgomery held retroactive the new constitutional right adopted in

Miller.

      After consideration of Appellant’s arguments, we find that the trial

court correctly dismissed his petition as untimely filed. Accordingly, for the

reasons set forth herein, we affirm the PCRA court's order dismissing

Appellant's PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/18




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