J-S04023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JOHNNIE J. RIVERA

                             Appellant               No. 3357 EDA 2017


            Appeal from the PCRA Order Dated September 15, 2017
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0635851-1990


BEFORE: BENDER, P.J.E., STABILE, and MURRAY, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 06, 2020

        Appellant Johnnie J. Rivera pro se appeals from the September 15, 2017

order of the Court of Common Pleas of Philadelphia County (“PCRA court”),

which dismissed as untimely his third petition under the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.         As

summarized by a prior panel of this Court on appeal relating to Appellant’s

first PCRA petition:

        [In connection with the killing of Elsie Olmeda,] Appellant was
        arrested in May of 1990 and charged with murder, voluntary
        manslaughter, robbery, burglary, criminal conspiracy, and
        possession of an instrument of crime (PIC).1 On February 27,
        1991, he pled guilty to, and was sentenced to life imprisonment
        for, first-degree murder. He also pled guilty to the remaining
        charges; but sentencing was deferred for these.


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1   18 Pa. C.S.A. §§ 2502(a), 2503, 3701, 3502, 903, and 907, respectively.
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       On February 24, 1992, the life sentence was re-imposed; and
       Appellant received ten to twenty years’ confinement for robbery,
       to be served consecutive to the murder sentence. He also
       received ten to twenty years’ confinement for burglary and five to
       ten years’ confinement for criminal conspiracy, both to be served
       concurrent to the robbery sentence. Voluntary manslaughter
       merged with murder for sentencing purposes, and he received a
       suspended sentence for PIC.

       Appellant’s motion to modify his sentence was denied, and he filed
       a notice of appeal on March 24, 1992. This Court vacated the
       robbery sentence and affirmed the remainder on April 23, 1993.
       Commonwealth v. Rivera, 630 A.2d 464 (Pa. Super. 1993)
       (unpublished memorandum). He did not petition our Supreme
       Court for allowance of an appeal. On August 4, 1993, he was re-
       sentenced on the robbery conviction to six to twenty years’
       confinement. No appeal followed.

Commonwealth v. Rivera, No. 2852 EDA 2002, unpublished memorandum,

at 1-2 (Pa. Super. filed June 20, 2003) (footnote omitted).          Appellant

thereafter filed his first PCRA petition, which the PCRA court dismissed as

untimely.    We affirmed.      On March 9, 2012, the PCRA court dismissed as

untimely Appellant’s second PCRA petition.       Appellant did not appeal.   On

March 22, 2016, Appellant pro se filed the instant, his third, petition for

collateral relief, seeking relief under Miller v. Alabama, 132 S. Ct. 2455

(2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).2                  On

September 15, 2017, the PCRA court dismissed as untimely Appellant’s instant



____________________________________________


2 In Miller, the U.S. Supreme Court determined 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,
132 S. Ct. at 2460. In Montgomery, the U.S. Supreme Court held that Miller
was a new substantive rule that, under the United States Constitution, must
be retroactive in cases on state collateral review. Montgomery, 136 S. Ct.
at 736.



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petition for relief. Appellant pro se appealed. Both he and the PCRA court

complied with Pa.R.A.P. 1925.

       On appeal,3 Appellant presents two issues for our review:

       I. Does the right established in [Miller], made retroactive by
       [Montgomery], apply to an individual above the age of 18?

       II. Were Appellant’s Equal Protection Rights violated when the
       PCRA [c]ourt failed to afford Appellant relief on the basis of Miller
       and Montgomery?

Appellant’s Brief at 8.

       Before we may address the merits of this appeal, however, we must

determine whether the PCRA court had jurisdiction to entertain the underlying

PCRA petition.     The PCRA contains the following restrictions governing the

timeliness of any PCRA petition.

       (b) Time for filing petition.--

       (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;




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3“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. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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              (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.

       (2) Any petition invoking an exception provided in paragraph (1)
       shall be filed within one year of the date the claim could have been
       presented.[4]

       (3) For purposes of this subchapter, a judgment 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.

42   Pa.C.S.A.    §   9545(b).        Section    9545’s   timeliness   provisions   are

jurisdictional.    Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

       Here, although it is uncontested that Appellant’s instant PCRA petition

is facially untimely, as it was filed over a decade after his judgment of
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4 Section 9545(b)(2) was recently amended, effective December 24, 2018, to
extend the time for filing from sixty days of the date the claim could have
been presented to one year. The amendment applies only to claims arising
on or after December 24, 2017. As a result, this amendment does not apply
to Appellant’s PCRA petition because it was filed prior to the amendment’s
effective date.

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sentence became final, Appellant argues that he is entitled to review under

the PCRA’s new constitutional right exception at Section 9545(b)(1)(iii) based

upon Miller/Montgomery. We disagree.

      We repeatedly have held that Miller does not apply to defendants who

were eighteen or older when they committed murder. Commonwealth v.

Lee, 206 A.3d 1, 7-11 (Pa. Super. 2019) (en banc) (holding Miller applies

only to those who were under the age of eighteen at the time they committed

the offense); Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa.

Super. 2018) (en banc) (holding that the High Court’s ruling in Montgomery

did not extend Miller’s holding to individuals who committed homicides after

they reached the age of 18); accord Commonwealth v. Furgess, 149 A.3d

90, 94 (Pa. Super. 2016). Accordingly, because he was eighteen years old at

the time he murdered Ms. Olmeda, Appellant has no claim under

Miller/Montgomery.

      To the extent Appellant argues that he is due relief because equal

protection requires that adults are entitled to the same protection as juveniles,

such argument is bereft of merit. We recently rejected a similar claim. See

Montgomery, 181 A.3d 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 [petitioner’s] assertions,

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

holding.”).

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      Appellant’s argument that despite the fact he was an adult at the time

of the crimes, Miller should be applied to him because his brain, as is the case

in juveniles, was not fully developed is also meritless. We rejected a similar

contention in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013).

In Cintora, two appellants, who were nineteen and twenty-one years of age

at the time of their underlying crimes, and were sentenced to life

imprisonment, claimed:

      [T]hat because Miller created a new Eighth Amendment right,
      that those whose brains were not fully developed at the time of
      their crimes are free from mandatory life without parole
      sentences, and because research indicates that the human mind
      does not fully develop or mature until the age of 25, it would be a
      violation of equal protection for the courts to treat them or anyone
      else with an immature brain, as adults. Thus, they conclude that
      the holding in Miller should be extended to them as they were
      under the age of 25 at the time of the murder and, as such, had
      immature brains.


Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended to

others   does   not    render   their   petition    timely   pursuant   to   [S]ection

9545(b)(1)(iii).”     Id. (emphasis added).        Thus, as in Cintora, Appellant’s

claim that Miller applies to the case sub judice based on his mental

development is without merit.

      In light of the foregoing, we cannot conclude that the PCRA court erred

in dismissing as untimely Appellant’s instant, his third, PCRA petition, as he

failed to prove the constitutional right exception at Section 9545(b)(1)(iii).

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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