J-S38005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN E. GRIFFIN                           :
                                               :
                       Appellant               :   No. 3360 EDA 2017

                Appeal from the PCRA Order September 15, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0708072-1987


BEFORE:      OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 16, 2019

        Brian E. Griffin appeals, pro se, from the order entered September 15,

2017, in the Court of Common Pleas of Philadelphia County denying, without

a hearing, his fourth petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 In this timely appeal,2 Griffin claims the PCRA court erred in, (1)

dismissing his petition without a hearing; (2) denying scientific evidence

regarding brain science as meritless; and (3) failing to apply the United States



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   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2In response to the PCRA court’s order, Griffin filed a timely concise statement
of errors complained of on appeal on November 2, 2017. On January 14,
2019, the PCRA court issued an opinion.
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Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012)3 and

Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct. 718 (2016).4 After a

thorough review of the parties’ briefs, certified record, relevant law, we affirm.

       As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. In 1987, when he was 19 years old, Griffin and an

accomplice firebombed a home in Philadelphia, killing one of the residents.

On October 31, 1988, following a bench trial, the trial court found him guilty

of murder in the first degree, arson, aggravated assault, conspiracy, and

possessing an instrument of crime. The court sentenced him to a mandatory

term of life imprisonment without the possibility of parole for murder in the

first degree.    In 2012, Griffin filed the instant PCRA petition, his fourth,

claiming although he was 19 years old at the time of the crime, and although

Miller only applies to those defendants who were under the age of 18 at the

time of the crime, he should be entitled to relief, as scientifically, his brain

was not fully developed.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)


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3The Miller Court held that mandatory sentences of life imprisonment without
parole for minors were unconstitutional, due to the immaturity of a minor’s
brain development.

4 The Montgomery Court held that the Miller decision was entitled to
retroactive application on collateral review.

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(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Griffin’s petition was untimely. We agree. A petitioner must

file a PCRA petition within one year of the date the underlying judgment

becomes final. See 42 Pa.C.S. § 9545(b)(1).

         The PCRA timeliness requirement, however, is mandatory and
         jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
         1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
         A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
         753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
         untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

         Griffin’s judgment of sentence became final on November 21, 1991, 90

days after the Pennsylvania Supreme Court denied his petition for allowance

of appeal and the time for filing a petition for writ of certiorari before the

United States Supreme Court expired. See U.S.Sup.Ct. Rule 13; 42 Pa.C.S.A.

§ 9545(b)(3). Therefore, he had until November 21, 1992, to file a timely

PCRA petition. The one before us, filed August 16, 2012,5 is patently untimely.

         Nevertheless, we may still consider an untimely PCRA petition if one of

the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii).    Here, Griffin contends his petition meets the newly recognized




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5 Although Griffin filed his petition in 2012, for reasons that are not apparent
from the record, the PCRA court did not take any action on the petition until
April 2017.

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constitutional right exception, which provides an avenue for relief if the

petitioner pleads and proves:

       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). For claims arising prior to December 24, 2017,

a petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the claim.6 See Act 2018, Oct. 24, P.L.

894, No. 146, §2 and §3. Here, Griffin asserts the combination of the U.S.

Supreme Court decisions of Miller and Montgomery satisfies the timeliness

exception.

       As noted above, Griffin has claimed entitlement to the application of

Miller/Montgomery because, at 19 years old at the time of his crime, his

brain had not fully developed as described by the Supreme Court in Miller.

However, in a recent, en banc decision, this Court considered and rejected

this very argument. Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019)

(en banc).

       In Lee, the defendant was 18 years and nine-months old when she was

involved in a robbery that resulted in the death of the victim. Id. at 3. Relying


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6 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3.

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on Miller/Montgomery, the defendant filed a PCRA petition arguing that she

was a “virtual minor” at the time of the crime and “the rationale underlying

the Miller holding, including consideration of characteristics of youth and age-

related facts identified as constitutionally significant by the Miller Court,

provides support for extending the benefit of Miller to her case.” Id. We

disagreed, stating:

      It is not this Court’s role to override the gatekeeping function of
      the PCRA time-bar and create jurisdiction where it does not exist.
      The PCRA’s time limitations “are mandatory and interpreted
      literally; thus, a court has no authority to extend filing periods
      except as the statute permits.” Commonwealth v. Fahy, 558
      Pa. 313, 737 A.2d 214, 222 (1999). The period for filing a PCRA
      petition “is not subject to the doctrine of equitable tolling.” Id.

      We recognize the vast expert research on this issue. If this matter
      were one of first impression and on direct appeal, we might
      expound differently. However, we are an error-correcting court.
      Until the United States Supreme Court or the Pennsylvania
      Supreme Court recognizes a new constitutional right in a non-
      juvenile offender, we are bound by precedent. We conclude, as
      we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa.
      Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa.
      Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759
      (Pa. Super. 2013) abrogation on other grounds recognized in
      Furgess, supra at 94], that age is the sole factor in determining
      whether Miller applies to overcome the PCRA time-bar and we
      decline to extend its categorical holding.

Lee, supra at 11 (footnote omitted).         Thus, the PCRA court correctly

concluded that it lacked jurisdiction to consider Griffin’s fourth PCRA petition.

Pursuant to Lee, we affirm the PCRA court’s order denying Griffin relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/19




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