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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

TAHREEL MALEEK TOWNSEND

                        Appellant                  No. 1515 EDA 2016


                Appeal from the PCRA Order April 28, 2016
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003136-2008


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J.                     FILED AUGUST 25, 2017

     A jury convicted Appellant, Tahreel Townsend, of first-degree murder

and conspiracy arising from the shooting death of Jimmy Ortiz. The

Commonwealth presented evidence that Townsend directed his two co-

defendants to gun down Ortiz while Ortiz attended a college graduation

party for a family member. After providing instructions and at least one

firearm, Townsend acted as a lookout for the murder.

     This Court affirmed the judgment of sentence. The Supreme Court of

Pennsylvania denied his petition for allowance of appeal on March 15, 2012.

Townsend did not seek review in the Supreme Court of the United States.

     This pro se appeal concerns Townsend’s third petition pursuant to the

Post Conviction Relief Act (“PCRA”). This Court has affirmed the dismissal of
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his previous two PCRA petitions. Townsend concedes that this petition is

untimely. See Appellant’s Brief, at 9.

      If a PCRA petition is untimely, we have no jurisdiction to entertain it,

unless one of three enumerated exceptions applies. See Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A PCRA petition invoking

one of these statutory exceptions must “be filed within sixty days of the date

the claim could first have been presented.” Id., at 652 (citing 42 Pa.C.S.A.

§ 9545(b)(2)).

      One such exception, raised here by Townsend, is the discovery by the

petitioner of facts of which he was previously unaware. See 42 Pa.C.S.A. §

9545(b)(1)(ii). When considering a PCRA’s petitioner’s claim that he has

established an exception to the PCRA’s time bar under § 9545(b)(1)(ii), the

petitioner must establish that the facts upon which the claim are predicated

were unknown to him, and that he could not have ascertained the facts

earlier despite the exercise of due diligence. See Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

      Townsend argues that his sentence of life imprisonment without parole

is unconstitutional pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). In Miller, the Court

held that “mandatory life-without-parole sentences for juveniles violate the

Eighth Amendment.” 132 S.Ct. at 2464. In Montgomery, the Court found




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that Miller recognized “a new substantive rule of constitutional law” and

should apply retroactively. 136 S.Ct. at 729.

      Townsend correctly notes that these cases can form the basis for an

exception    to   the   timeliness   requirements   of   the   PCRA.   However,

Pennsylvania law stands in stark contrast to Townsend’s claim that these

cases represent newly-discovered facts under § 9545(b)(1)(ii). Decisional

law is not a fact under that section. See Commonwealth v. Brandon, 51

A.3d 231, 235 (Pa. Super. 2012). Furthermore, even if Townsend had raised

this claim under the newly recognized constitutional right exception, 42

Pa.C.S.A. § 9545(b)(1)(iii), we would conclude he would be due no relief.

      To establish the exception in § 9545(b)(1)(iii), a petition must plead

and prove that either the Supreme Court of the United States or the

Supreme Court of Pennsylvania has recognized a new constitutional right.

The opinion recognizing the right must have been filed after the deadline for

the petitioner to file a timely petition. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

Furthermore, the asserted right must have been recognized by one of those

courts as retroactive. See id. However, “[a] contention that a newly-

recognized constitutional right should be extended to others does not

render [a] petition [seeking such an expansion of the right] timely pursuant

to section 9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90, 94

(Pa. Super. 2016) (citation omitted; brackets in original; emphasis in

original).


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     Here, Townsend concedes that he was over the age of 18 when Ortiz

was murdered. See Appellant’s Brief, at 11. Miller, however, applies only to

“juveniles,” 132 S.Ct. at 2464, that is, only to those defendants who were

“under the age of 18 at the time of their crimes,” id., at 2460. Appellant’s

reliance on Miller and Montgomery for retroactive relief from a crime he

committed when he was legally an adult is unavailing.

     And this Court has flatly rejected Appellant’s brain development

argument. See, e.g., Furgess, 149 A.3d at 94.

     The PCRA court properly dismissed Townsend’s petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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