J-S70015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

LEONARD REEL,

                            Appellant                      No. 1000 EDA 2015


                   Appeal from the PCRA Order March 13, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1116711-1978


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED DECEMBER 08, 2015

        Appellant, Leonard Reel, appeals pro se from the order of March 13,

2015, dismissing, without a hearing, his serial petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the

petition is untimely, we affirm.               We deny Appellant’s petition for an

extension of time to file a reply brief as moot.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record.

        On December 12, 1979, a jury found Appellant, who was twenty-three

years old at the time of the incident, guilty of murder in the first degree.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Following the denial of post-trial motions, the trial court sentenced him to a

term of life imprisonment.           On December 17, 1982, the Pennsylvania

Supreme Court affirmed the judgment of sentence. (See Commonwealth

v. Reel, 453 A.2d 923 (Pa. 1982)).

        Appellant filed his first pro se petition pursuant to the Post Conviction

Hearing Act (PCHA)1 on April 22, 1983. The PCHA court appointed counsel

who filed an amended petition on May 3, 1985. Following oral argument on

November 21, 1985, the PCHA court dismissed the petition without a

hearing. Appellant did not file an appeal.

        On May 27, 1987, Appellant, through counsel, filed his second petition

pursuant to the PCHA. On September 23, 1988, the PCHA court dismissed

the petition without a hearing.         On May 25, 1989, this Court affirmed the

denial of the second PCHA petition.            (See Commonwealth v. Reel, No.

02957 Philadelphia 1988, unpublished memorandum (Pa. Super. filed May

25, 1989)).      Appellant did not seek leave to appeal to the Pennsylvania

Supreme Court.

        Appellant, acting pro se, filed a third petition, this time pursuant to the

PCRA, on October 29, 2002.             The PCRA court dismissed the petition as

untimely on April 2, 2003. Appellant did not file an appeal.



____________________________________________


1
    The PCHA was the predecessor to the current PCRA.



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      On April 27, 2012, Appellant filed a pro se “Petition for a Writ of

Habeas Corpus” in the Civil Trial Division of the Philadelphia Court of

Common Pleas. Deeming the pleadings to be a PCRA petition, the Civil Trial

Division sua sponte transferred the matter to the Criminal Trial Division. On

September 8, 2014, Appellant filed an amended pro se petition.             On

February 19, 2015, the PCRA court issued notice of its intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907.          See

Pa.R.Crim.P. 907(1).    Appellant filed a response on March 9, 2015.       On

March 13, 2015, the PCRA court dismissed the petition as untimely.

      Appellant subsequently filed a timely pro se notice of appeal.       The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal and did not issue any additional opinion.          See

Pa.R.A.P. 1925.

      Appellant raises one question on appeal:

            A. Whether Appellant is entitled to a remand to the PCRA
      court for an evidentiary hearing as the findings of the PCRA court
      are fraught with error and have deviated from the legal
      standard?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

      Appellant appeals from the denial of his PCRA petition. To be eligible

for relief pursuant to the PCRA, Appellant must establish that his conviction

or sentence resulted from one or more of the enumerated errors or defects

found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues

raised in the PCRA petition have not been previously litigated or waived.

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See 42 Pa.C.S.A. § 9543(a)(3).       An allegation of error “is waived if the

petitioner could have raised it but failed to do so before trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”            42

Pa.C.S.A. § 9544(b).      Our standard of review for an order denying PCRA

relief is well settled:

              This Court’s standard of review regarding a PCRA court’s
        order is whether the determination of the PCRA court is
        supported by the evidence of record and is free of legal error.
        Great deference is granted to the findings of the PCRA court, and
        these findings will not be disturbed unless they have no support
        in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        In the instant matter, Appellant filed his PCRA petition on April 27,

2012.     The PCRA provides that “[a]ny petition under this subchapter,

including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).      A

judgment becomes final for PCRA purposes “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.” 42 Pa.C.S.A. § 9545(b)(3).

        Here, the Pennsylvania Supreme Court affirmed the judgment of

sentence on December 17, 1982.           Therefore, Appellant’s judgment of

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sentence became final on February 21, 1983, after the sixty-day period to

file a petition for a writ of certiorari with the United States Supreme Court

expired. See U.S.Sup.Ct.R. 20.

      Because Appellant did not file his petition until April 27, 2012, the

petition is facially untimely. Thus, to obtain PCRA relief, he must plead and

prove that his claim falls under one of the statutory exceptions to the one-

year time bar provided at section 9545(b).            See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully pleads and 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.

Id.

      Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within 60 days of the date the claim could have been

presented.”    Id. at § 9545(b)(2).    The Pennsylvania Supreme Court has

repeatedly stated that it is an appellant’s burden to plead and prove that one

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of the above-enumerated exceptions applies.     See, e.g., Commonwealth

v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008).

      Here, Appellant seeks to invoke the newly-discovered facts exception,

(see Appellant’s Brief, at 7-12), codified at 42 Pa.C.S.A. § 9545(b)(1)(ii),

and   discussed   in   the   Pennsylvania   Supreme    Court’s   decision   in

Commonwealth v. Bennett, 930 A.2d 1264, (Pa. 2007), which held that

this exception refers not to after-discovered evidence, but to facts that were

previously unknown to the petitioner. See Bennett, supra at 1270. The

Court in Bennett also held, in accord with the statutory language, that an

appellant must prove that the facts upon which the claim is predicated could

not have been ascertained earlier through the exercise of due diligence.

See id. at 1272; see also Commonwealth v. Taylor, 933 A.2d 1035,

1041 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (citation

omitted).

      Specifically, Appellant asserts that “brain science” discussed in the

United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.

2455 (2012), is newly discovered evidence that could have either been

utilized to support mitigation or to demonstrate that Appellant could not

have formulated the intent to kill because his brain was not yet fully

developed. (See Appellant’s Brief, at 11). Appellant concedes that Miller,




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as a legal precedent, is not relevant because he was over 18 years old at the

time he committed the crimes underlying his sentence. (See id. at 10).

        However, the “brain science” identified by Appellant was published in

2003.    See Miller, at 2464.    As noted, Appellant did not file the instant

petition until 2012, undeniably more than sixty days later.            Appellant

contends that he could not have discovered this “brain science” prior to the

Miller decision.     (See Appellant’s Brief, at 11-12).       Even taking this

argument at face value, we note that the United States Supreme Court

discussed the science at issue in Miller years before in both Graham v.

Florida, 560 U.S. 48, 68-69 (2010) and Roper v. Simmons, 543 U.S. 551,

570 (2005).

        Moreover, our Supreme Court has specifically held that the starting

point for the sixty-day clock is not the date that a decision, article, or report

references a study but the date that the study itself first became available in

the public domain. See Commonwealth v. Edmiston, 65 A.3d 339, 352-

53 (Pa. 2013), cert. denied, 134 S.Ct. 639 (2013) (holding that sixty-day

clock began running from date that various studies first became available in

public domain, not date of publication of report that compiled the results of

studies). The “brain science” specifically discussed in Miller was from 2003.

See Miller, supra at 2464.       The studies discussed in Roper, which the

Supreme Court references in Miller, date from as early as 1968. See id.;

see Roper, supra at 570.        Thus, Appellant did not file his fourth PCRA


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petition within sixty days of the date the claim could have been presented.

See 42 Pa.C.S.A. § 9545(b)(2).

      Therefore, because the record demonstrates that Appellant’s PCRA

petition is untimely with none of the statutory exceptions to the time bar

proven, we affirm the order of the court dismissing Appellant’s fourth PCRA

petition. Further, we deny Appellant’s petition for an extension of time to

file a reply brief as moot.

      Order affirmed. Petition denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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