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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
KEVIN SILAS,                                :
                                            :
                          Appellant         :     No. 1703 EDA 2014


                   Appeal from the PCRA Order May 14, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0624121-1981

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 25, 2015

        Appellant, Kevin Silas, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his serial Post

Conviction Relief Act1 (“PCRA”) petition as untimely.2     Appellant, who was



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  The PCRA court referred to the instant petition as both Appellant’s fifth and
sixth. PCRA Ct. Op., 7/15/14, at 2; Order, 5/14/14, at n.1. A review of the
voluminous record reveals Appellant has filed a copious number of petitions
and memoranda of law, some labelled as PCRA and some not, and some of
which should be construed as amended or supplemental PCRA petitions.
Nevertheless, it is not necessary to determine the precise number of prior
PCRA proceedings, as the timeliness requirements of the PCRA apply to all
petitions.   See 42 Pa.C.S. § 9545(b)(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[.]”).
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eighteen years old at the time of the underlying homicide, alleges his

sentence of life imprisonment without parole is illegal under Graham v.

Florida, 560 U.S. 48 (2010), and the Eighth Amendment to the United

States Constitution. We affirm.

     A prior panel of this Court summarized the underlying facts as

follows.3 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.

     On March 9, 1982, after a jury trial, Appellant was found guilty of

murder in the second degree, conspiracy, and robbery.      On November 1,

1982, the trial court imposed the mandatory sentence of life imprisonment

without parole.4   This Court affirmed the judgment of sentence on direct

appeal on June 14, 1988.5 Appellant did not seek allowance of appeal with

our Supreme Court.

3
   See Commonwealth v. Silas, 1121 PHL 1997 (unpublished
memorandum) (Pa. Super. Feb. 24, 1999) (affirming dismissal of third PCRA
petition on untimeliness grounds).
4
  The trial court also imposed imprisonment sentences of ten to twenty years
for robbery and five to ten years for conspiracy, both to run concurrently
with the life sentence.
5
 Commonwealth v. Silas, 342 PHL 1987 (unpublished memorandum) (Pa.
Super. June 14, 1988).




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     Appellant filed the instant pro se PCRA petition, along with a

memorandum of law, on September 13, 2010, claiming: (1) his sentence

was cruel and unusual punishment because he was a minor at the time of

the offense; and (2) Graham held it is unconstitutional to impose a life-

without-parole sentence on a juvenile for a non-homicide offense. Appellant

subsequently lodged eight more filings, in which he invoked the PCRA “new

constitutional right” timeliness exception at Subsection 9545(b)(1)(iii) and

argued that at age eighteen, he was, although not a “juvenile,” a “minor”

who qualifies for the protections afforded by Graham.

     On March 17, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition as untimely. 6 The court found that

Appellant could not rely on Graham or Miller v. Alabama, 132 S. Ct. 2455

(2012), to invoke a timeliness exception. Appellant filed a pro se response,

and on May 14th, the court filed the instant order dismissing the petition as

untimely. Appellant took this timely appeal.

     Appellant’s sole issue for our review is whether the PCRA court erred in

dismissing his petition as untimely. He avers that he learned of the Graham

decision on June 28, 2010, the same day the prison library received a copy

of the decision. Appellant further asserts that within sixty days, he filed a

“Petition for Review” with the Erie County Court of Common Pleas, but that

6
  The record does not indicate any reason for the lapse of three-and-a-half
years between the filing of the initial petition and the court’s Rule 907
notice.



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court returned it to him with instruction to file it in the proper court—the

Philadelphia Court of Common Pleas. Appellant avers that he then filed the

instant PCRA petition with the PCRA court and invoked the exception at

Subsection 9545(b)(1)(iii). Appellant then argues he “was not the principal

killer” in this case and “did not kill or intend to kill,” had “a twice diminished

moral culpability,” and therefore is subject to the prohibition in Graham

against life sentences for juvenile offenders “who ‘did not kill or intend to

kill.’”    Appellant’s Brief at 4, 14, 18.       Finally, Appellant again asserts a

distinction in Pennsylvania between children, who are under eighteen years

of age, and minors, who are eighteen to twenty. We find no relief is due.

          “[I]f a PCRA petition is untimely, neither this Court nor the trial court

has jurisdiction over the petition.        Without jurisdiction, we simply do not

have       the    legal   authority   to    address    the   substantive   claims.”

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 103 (Pa. 2014). Subsection 9545(b)(1)

of the PCRA requires a petition to be filed within one year of the date the

judgment becomes final.          42 Pa.C.S. § 9545(b)(1).        The exception at

Subsection 9545(b)(1)(iii) allows a petition after the filing period when it

asserts a constitutional right recognized by the United States Supreme Court

or Pennsylvania Supreme Court and held to apply retroactively. 42 Pa.C.S.

§ 9545(b)(1)(iii). Finally, we note that in Seskey, this Court held,

                Recently, in Cunningham, our Supreme Court held
             that the constitutional right announced by the United


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          States Supreme Court in Miller does not apply
          retroactively. Consequently, [the petitioner] cannot rely
          upon Miller or subsection 9545(b)[(1)](iii) to establish
          jurisdiction over his untimely PCRA petition in any
          Pennsylvania court.

Seskey, 86 A.3d at 243 (citation omitted).

       In the case sub judice, it is not disputed that Appellant’s petition was

filed beyond the general one-year filing period.7         See 42 Pa.C.S. §

9545(b)(1).    Pursuant to Seskey, we hold the PCRA court did not err in

finding Appellant could not rely on Graham or Miller to invoke the

Subsection 9545(b)(1)(iii) timeliness exception.    See Seskey, 86 A.3d at

243.    Appellant’s argument that he was still a minor at age eighteen is

meritless, as Miller specifically held “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.’” See Miller,

132 S. Ct. at 2460 (emphasis added). Accordingly, the PCRA court properly

dismissed his petition as untimely.

       Order affirmed.




7
  As stated above, this Court affirmed Appellant’s judgment of sentence on
June 14, 1988, and he did not seek allowance of appeal with our Supreme
Court. “The amended PCRA provided a one-year grace period . . . to first-
time PCRA petitioners whose judgments of sentence became final prior to
the effective date[, January 16, 1996,] of the amended Act.”
Commonwealth v. Robinson, 12 A.3d 477, 479 n.3 (Pa. Super. 2011).
“The grace period does not apply in the present case,” as this was not
Appellant’s first PCRA petition. See id.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2015




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