J-A03013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
BERNARD BENNETT                         :
                                        :
                  Appellant             :        No. 2266 EDA 2016

                Appeal from the PCRA Order June 28, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0307361-1996


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                FILED JANUARY 30, 2018

     Appellant, Bernard Bennett, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed as

untimely his serial petition filed under the Post Conviction Relief Act

(“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On September 24, 1997, a jury

convicted Appellant of first-degree murder and other offenses in connection

with Appellant’s murder of a police officer. The court sentenced Appellant on

November 10, 1997, to life imprisonment for the murder conviction and

imposed lesser terms of imprisonment for the remaining crimes. This Court

affirmed the judgment of sentence on April 7, 1999, and our Supreme Court

denied allowance of appeal on September 30, 1999. See Commonwealth

v. Bennett, 738 A.2d 1047 (Pa.Super. 1999), appeal denied, 560 Pa. 695,

743 A.2d 913 (1999).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      From 2000 to 2011, Appellant unsuccessfully litigated four PCRA

petitions.   On December 14, 2015, Appellant filed pro se the current, fifth

PCRA petition. The court issued Pa.R.Crim.P. 907 notice on April 19, 2016.

On May 10, 2016, Appellant filed a motion to amend his PCRA petition; and

on May 17, 2016, Appellant responded to the court’s Rule 907 notice. The

court dismissed Appellant’s petition as untimely on June 28, 2016. On July

12, 2016, Appellant timely filed a notice of appeal.        No Pa.R.A.P. 1925(b)

concise statement was ordered or filed.

      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 December

29, 1999, 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 December 14, 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

concedes he was 22 years old at the time of the offenses at issue. Thus,

Miller and Montgomery do not apply.            Furthermore, this Court has

previously rejected the 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 Commonwealth v. Furgess, 149

A.3d 90 (Pa.Super. 2016) (holding appellant who was 19 years old at time of

offenses was not entitled to relief under Miller and Montgomery on

collateral review; rejecting “technical juvenile” argument).     Therefore, the

court properly dismissed Appellant’s petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2018




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