J-S56040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CHARLES HILLER,

                            Appellant                    No. 3274 EDA 2016


                Appeal from the PCRA Order September 22, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0904821-1990


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 12, 2017

        Appellant, Charles Hiller, appeals pro se from the order dismissing his

third serial petition brought pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546.             The PCRA court denied Appellant’s

petition, filed seventeen years after his judgment of sentence became final,

as facially untimely with no statutory exception to the time bar pleaded and

proven. Appellant claims the benefit of Miller v. Alabama, 567 U.S. 460

(2012) through Montgomery v. Louisiana, 136 S. Ct. 718, as revised (Jan.

27, 2016). We affirm.

        Appellant, born September 22, 1971, does not dispute that on July 13,

1990, when he was eighteen years of age (two months before his nineteenth
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*   Retired Senior Judge assigned to the Superior Court.
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birthday), he fatally shot the victim, Joseph Gibson.       At the same time,

Appellant also shot at a second person, Blaylan Freeman. A jury convicted

him of murder of the first degree, aggravated assault, possession of an

instrument of crime, and recklessly endangering another person. The trial

court sentenced him to life imprisonment plus a consecutive term of not less

than seven and one-half nor more than fifteen years of incarceration. This

Court affirmed the judgment of sentence on February 3, 1994.                  Our

Supreme Court denied allowance of appeal on December 27, 1994.

Appellant filed two previous PCRA petitions which did not result in relief.

       On August 21, 2012, over seventeen years later, Appellant filed the

instant third PCRA petition, pro se. In response to the PCRA court’s notice of

intent to dismiss, as untimely, pursuant to Pa.R.Crim.P. 907, Appellant filed

two amended petitions. The court dismissed the petition (as amended) on

September 22, 2016. This timely appeal followed, on October 18, 2016.1

       Appellant raises one question for our review:

             [1.] Did the PCRA court commit an error of law where it
       failed to conduct the proper analysis in determining the
       substantive nature of [Appellant’s] claim of cruel & unusual
       punishment under the 8th amendment, where Miller v.
       Alabama and Montgomery v. [Louisiana], bars the imposition
       of a [mandatory] life without parole sentence for juveniles and
       adolescents without first considering the mitigating factors of
       youth?

____________________________________________


1 The court did not order a statement of errors. The court filed its opinion on
January 24, 2017. See Pa.R.A.P. 1925.



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(Appellant’s Brief, at 1) (unnecessary capitalization omitted).2

       Our standard and scope of review are well-settled.

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court’s
       findings are supported by the record and without legal error.
       [Our] scope of review is limited to the findings of the PCRA court
       and the evidence of record, viewed in the light most favorable to
       the prevailing party at the PCRA court level. The PCRA court’s
       credibility determinations, when supported by the record, are
       binding on this Court. However, this Court applies a de novo
       standard of review to the PCRA court’s legal conclusions.

                                       *       *       *

       We note the timeliness of a PCRA petition implicates the
       jurisdiction of this Court and the PCRA court. Pennsylvania law
       makes clear no court has jurisdiction to hear an untimely PCRA
       petition. The PCRA confers no authority upon this Court to
       fashion ad hoc equitable exceptions to the PCRA time-bar[.]
       This is to accord finality to the collateral review process. A
       petition for relief under the PCRA, including a second or
       subsequent petition, must be filed within one year of the date
       the judgment becomes final unless the petition alleges, and the
       petitioner proves, that an exception to the time for filing the
       petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii),
       is met. The [A]ct provides, in relevant part, as follows.

       § 9545. Jurisdiction and proceedings

                                           *       *       *

                (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:
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2 Appellant numbers eight sequential pages as “1.” The question appears on
the sixth of the eight “1” pages.



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                (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).

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en

banc) (case citations, internal quotation marks and other incidental

punctuation omitted).

       Here, Appellant filed the instant petition over seventeen years after his

judgment was final.     Therefore, it is untimely on its face unless Appellant

can plead and prove a statutory exception to the time-bar.                However,

Appellant does not attempt to prove an explicit exception to the PCRA time-

bar.

       Instead he argues, in somewhat meandering fashion, that scientific

studies of human brain development as a gradual process extending into the

mid-twenties entitle him to a remand. He wants an evidentiary hearing to

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show that at eighteen, when he committed the murder, his brain was still

immature. He maintains that because his brain was still immature when he

committed the murder, he is entitled to the benefit of Miller, supra.3

Notably, Miller expressly applies only to those defendants who were “under

the age of 18 at the time of their crimes[.]” Miller, supra at 465 (emphasis

added).4

       Thus, Appellant’s argument asks for an extension of Miller. It does

not plead and prove an exception to the time-bar. See Commonwealth v.

Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013) (contention that newly-recognized constitutional right in Miller
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3  In pertinent part, the Miller Court held that mandatory-sentencing
schemes requiring that all children convicted of homicide receive lifetime
incarceration without possibility of parole, violate the Eighth Amendment’s
ban on cruel and unusual punishment. See Miller, supra at 489.

4 Moreover, Appellant’s “where do you draw the line” argument, even if
timely and otherwise reviewable, would not merit relief. The claim has
already been raised and rejected for the issue of capital punishment. See
Roper v. Simmons, 543 U.S. 551 (2005):

              Drawing the line at 18 years of age is subject, of course, to
       the objections always raised against categorical rules.         The
       qualities that distinguish juveniles from adults do not disappear
       when an individual turns 18. . . . For the reasons we have
       discussed, however, a line must be drawn. . . . The age of 18 is
       the point where society draws the line for many purposes
       between childhood and adulthood. It is, we conclude, the age at
       which the line for death eligibility ought to rest.

Id. at 574.




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should be extended to others eighteen or over does not render petition

timely pursuant to section 9545(b)(1)(iii)); accord, Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing Cintora, supra).

     Appellant fails to plead and prove a statutory exception to the PCRA

time-bar. The PCRA court properly dismissed his petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/17




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