J-S51014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WALI SHABAZZ                               :
                                               :
                       Appellant               :   No. 2425 EDA 2017

                    Appeal from the PCRA Order July 11, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1007111-2002

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 27, 2018

        Appellant, Wali Shabazz, appeals from the July 11, 2017 Order

dismissing as untimely his second Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.           After careful review, we

affirm.1

        We briefly summarize the facts and procedural history as follows. On

June 28, 2004, a jury convicted Appellant of Second-Degree Murder, Burglary,

and Carrying Firearms in Public in Philadelphia.2          The charges against

Appellant arose from a July 27, 2002 incident during which Appellant fatally




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1   Appellant has also filed a “Renewal Motion to Stay.” We deny this Motion.

2   18 Pa.C.S. §§ 2502(b), 3502, and 6108, respectively.
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shot Andre Thompson. Appellant was nearly 24 years old at the time of the

crime.3

        On September 15, 2004, the lower court sentenced Appellant to an

aggregate term of life imprisonment.4 On January 4, 2008, this Court affirmed

Appellant’s Judgment of Sentence, and on September 3, 2008, the

Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal. See Commonwealth v. Shabazz, 947 A.2d 832 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 956 A.2d 434 (Pa. 2008).

Appellant’s Judgment of Sentence, thus, became final on December 2, 2008.5

        Appellant’s first PCRA Petition, which he filed in 2009, garnered no relief.

On March 23, 2016, Appellant filed a pro se “Supplemental” PCRA Petition,

which the PCRA court properly treated as a second PCRA Petition. Appellant

claimed that, although he was 23 years old at the time of the crimes forwhich

he was convicted, he was entitled to relief pursuant to Montgomery v.




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3   Appellant was born on August 7, 1978.

4 The court imposed a life sentence for Appellant’s Murder conviction and a
consecutive term of 18 to 60 months’ incarceration for his firearms conviction.
Appellant’s Burglary conviction merged for sentencing purposes.

5 See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment [of sentence ]becomes 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.”); U.S. Supreme Court Rule 13.



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Louisiana, 136 S.Ct. 718 (U.S. 2016), and Miller v. Alabama, 567 U.S. 460

(2012).6

       On April 7, 2017, Appellant filed a second “supplemental” Petition

wherein he raised an ineffectiveness of counsel claim. In particular, Appellant

averred that his trial counsel was ineffective because he “introduced

testimony/evidence to the jury that opened the door” to evidence that

damaged Appellant and that his first PCRA counsel was ineffective for failing

to review Appellant’s trial transcripts and for failing to file an amended

Petition. Supplemental Petition, 4/7/17.

       On May 17, 2017, the PCRA court issued a Notice of Intent to Dismiss

Without a Hearing pursuant to Pa.R.Crim.P. 907. On May 31, 2017, Appellant

filed a response to the court’s Rule 907 Notice. On July 11, 2017, the PCRA

court dismissed the instant Petition. This pro se appeal followed.

       Appellant raises the following issues on appeal:

       1. Is [A]ppellant entitled to relief in the form of resentencing in
          violation of his 8th and 14th United States Constitutional
          Amendment rights, Cruel and Unusual Punishment based on
          the facts that [A]ppellant had an immature brain relied upon
          from the neuroscience and brain development theory in
          scientific studies for underdeveloped brains in individuals from
          18 to 25 years of age. It is cruel and unusual punishment to
          sentence an individual to life without parole with an immature
          brain, and petitioner is similarly situated under the Equal
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6 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470. The U.S. Supreme Court held in
Montgomery that its decision in Miller applies retroactively. Montgomery,
136 S.Ct. at 732.

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           Protection Clause as those who are under the age of 18 with
           underdeveloped brains?

        2. Is [A]ppellant entitled to relief in the form of an evidentiary
           hearing and/or a new trial where trial and PCRA counsel
           provided [A]ppellant with ineffective assistance of [c]ounsel in
           [v]iolation of the United States Constitution Sixth and
           Fourteenth Amendment for trial counsel’s failure to
           meaningfully [a]mend PCRA Petition, and file [F]inley[7] letter
           with this claim [Appellant] is addressing to the said Court is
           meritorious?

Appellant’s Brief at 4.

        We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

        Before we may consider the merits of Appellant’s claim, we must

determine whether there is jurisdiction to consider the PCRA petition. “The

timeliness of a post-conviction petition is jurisdictional.” Commonwealth v.

Furgess, 149 A.3d 90, 92 (Pa. Super. 2016) (citation omitted). 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 became final unless

the petition alleges and the petitioner proves one of the three exceptions to

the time limitations for filing the petition set forth in Section 9545(b)(1) of the

PCRA,8 and the petitioner filed the petition within 60 days of the date the


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7   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

8   (b) Time for filing petition.--




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exception could first have been presented.9 Id. Here, Appellant’s Judgment

of Sentence became final in 2008, after our Supreme Court denied review and

the period to petition the United States Supreme Court subsequently expired.

Appellant’s current PCRA Petition, filed in March 2016, is patently untimely.

        With respect to his Miller claim, in his Brief to this Court Appellant

attempts to invoke the timeliness exception under Section 9545(b)(1)(iii),

alleging that his illegal sentence claim is based on a newly recognized

constitutional right, which is retroactive in application. See Appellant’s Brief

at 10 (citing Montgomery, supra.).


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        (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:

           (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).

9   See 42 Pa.C.S § 9545(b)(2).

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      As long as this court has jurisdiction over the matter, a legality of

sentence issue is reviewable and cannot be waived.         Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).            However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which we

have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”); Commonwealth v. Miller, 102 A.3d 988,

995-96 (Pa. Super. 2014) (explaining that the decision in Alleyne does not

invalidate a mandatory minimum sentence when presented in an untimely

PCRA Petition). Appellant filed the instant PCRA Petition on March 23, 2016,

which was within 60 days of Montgomery (decided January 25, 2016). He,

thus, satisfied the diligence requirement set forth in Section 9545(b)(2).

      Nevertheless, Appellant’s Miller claim fails because he was nearly 24

years old at the time he committed the instant murder. Miller only applies to

individuals who were juveniles, i.e., under 18 years old, when they committed

the crime on which their current conviction is based. See Commonwealth

v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014). Further, this Court has previously

refused to render relief on an appellant’s brain science argument.           See

Commonwealth v. Furgess, 149 A.3d at 94 (rejecting the 19-year-old

appellant’s argument based on neuroscientific theories of brain development

that he is entitled to PCRA relief because he was a “technical juvenile” at the

time he committed his crimes).

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      In his second issue, Appellant claims the PCRA court erred in finding

that his ineffective assistance of trial and PCRA counsel claim lacked merit.

He characterizes his trial counsel’s performance as “inexcusable, deficient, and

[having] prejudiced” Appellant by “open[ing] the door” in his cross-

examination to testimony that was damaging to Appellant. Appellant’s Brief

at 24.   He further contends that PCRA counsel was ineffective because he

failed to investigate whether Appellant’s collateral claims had merit, and,

instead, merely filed a “Finley letter.” Id. at 28-29. Because Appellant has

not pleaded or proved the applicability of any of the PCRA’s timeliness

exceptions, we are without jurisdiction to review the merits of this claim.

      Order affirmed. Renewal Motion to Stay denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




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