J-S77043-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
MICHAEL TURNER,                            :
                                           :
                  Appellant                :   No. 2307 EDA 2018

                Appeal from the PCRA Order Entered July 10, 2018
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1024891-1989

BEFORE:        OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 25, 2019

      Michael Turner (Appellant) appeals pro se from the July 10, 2018 order

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      When he was 21 years old, Appellant and a co-conspirator shot and

killed Michael Bush. In 1991, following a jury trial, Appellant was convicted

of first-degree murder, criminal conspiracy, and possession of an instrument

of a crime and was immediately sentenced to a term of life imprisonment

without parole.     This Court affirmed his judgment of sentence in 1993.

Commonwealth v. Turner, 631 A.2d 218 (Pa. Super. 1993) (unpublished

memorandum). No petition for allowance of appeal was filed.

      In the years following this Court’s affirmation of his judgment of

sentence, Appellant filed several PCRA petitions, but none merited relief. On

March 24, 2016, Appellant pro se filed the PCRA petition that is the subject

*Retired Senior Judge assigned to the Superior Court.
J-S77043-18

of this appeal. On April 17, 2018, the PCRA court issued notice of its intent

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

Appellant filed a response, and on July 10, 2018, the PCRA court

simultaneously issued a memorandum opinion and entered an order denying

Appellant’s petition as untimely filed. Appellant pro se timely filed a notice

of appeal.    The PCRA court did not order Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

In lieu of a 1925(a) opinion, the PCRA court reentered its July 10, 2018

memorandum opinion.

      Our first task is to determine whether Appellant’s PCRA petition was

timely filed, as the timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.       42 Pa.C.S.

§ 9545.    “[W]hen a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the [PCRA] court

has no power to address the substantive merits of a petitioner’s PCRA

claims.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).




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      It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 1993. However, Appellant filed his petition within

60 days of the United States Supreme Court’s decision in Montgomery v.

Louisiana, __ U.S. __, 136 S.Ct. 718 (2016), and avers he meets the

following timeliness exception: “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)(iii); see Appellant’s Brief at 5, 7.

      In 2012, the Supreme Court of the United States 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.’”   Miller v. Alabama, 567 U.S. 460, 465 (2012) (emphasis

added).   In Montgomery, the Court determined that Miller announced a

new substantive rule of law that applies retroactively.     Montgomery, 136

S.Ct. at 736.

      Appellant was not under the age of 18 when he murdered Bush, a fact

which he acknowledges. See Appellant’s Brief at 6 (“Appellant was 21 years

old at the time of the crime.”). This Court has held that because Miller does

not apply to a petitioner who was 18 years or older at the time he

committed murder, such petitioner cannot rely on Miller to avail himself of

the time-bar exception in subsection 9545(b)(1)(iii). See Commonwealth




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v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing Commonwealth v.

Cintora, 69 A.3d 759 (Pa. Super. 2013)); see also Commonwealth v.

Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (reaffirming

the holding in Furgess that Montgomery v. Louisiana did not extend

Miller’s holding to individuals who committed homicides after they reached

the age of 18). Because Appellant is not within the ambit of Miller, he did

not meet his burden of establishing an exception to the PCRA’s time bar.

      Furthermore, Appellant’s attempt to invoke Miller to support his

argument that his sentence violates the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitution also fails.         See

Appellant’s Brief at 12-14. Miller only announced a new rule with respect to

the Eighth Amendment, not the Equal Protection Clause. Montgomery, 181

A.3d at 366 (“Neither the Supreme Court of the United States nor our

Supreme Court has held that Miller announced a new rule under the Equal

Protection Clause. Instead, Miller only announced a new rule with respect to

the Eighth Amendment. Thus, contrary to [Montgomery’s] assertion, his

Equal Protection Clause argument is also an attempt to extend Miller’s

holding.”).

      Similarly unavailing is Appellant’s averment that the holdings in

Apprendi v. New Jersey, 528 U.S. 1018 (2000) and Alleyne v. United

States, 570 U.S. 99 (2013), entitle him to relief. See Appellant’s Brief at

13 (citing the aforementioned cases to support his argument that a




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defendant’s “age and age-related characteristics” should be considered

“elements of a crime and penalty” that a fact-finder should be allowed to

consider). Without addressing the merits of Appellant’s argument, we note

that our Supreme Court has held that Alleyne “does not apply retroactively

to cases pending on collateral review,” Commonwealth v. Washington,

142 A.3d 810, 820 (Pa. 2016), and there has yet to be a decision by the

United States Supreme Court stating that Alleyne applies retroactively to

untimely filed PCRA petitions. Thus, Apprendi and its progeny do not apply

to Appellant.    Accordingly, the PCRA court did not error by dismissing

Appellant’s petition.1

      Order affirmed.


1
  Lastly, we note that in his response to the PCRA court’s 907 notice,
Appellant sought to stay the disposition of his petition pending this Court’s
decision in Commonwealth v. Lee, No. 1891 WDA 2016, a case regarding
the application of the reasoning in Miller to young adults, which was
certified by this Court for en banc review. We assume the PCRA court’s
subsequent dismissal of Appellant’s petition served as a denial of this
request, as there is no independent order on the record addressing the stay
sought by Appellant.

      We too decline to hold this case in abeyance pending the outcome of
Lee. Even if this Court en banc were to extend Miller’s reasoning to young
adults, Appellant still would be unable to meet the requirements of the
newly-recognized and retroactively-applicable constitutional right time-bar
exception. See 18 Pa.C.S. § 9545(b)(1)(iii) (requiring the Supreme Court
of the United States or the Supreme Court of Pennsylvania to
recognize the new constitutional right and hold that the right applies
retroactively). If either Supreme Court ever extends Miller to young adults
and deems the new rule to apply retroactively, Appellant may file another
PCRA petition requesting relief at that time consistent with subsections
9545(b)(1)(iii) and (b)(2).




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/25/2019




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