J-S59030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES FRAZIER                              :
                                               :   No. 3489 EDA 2016
                       Appellant

                   Appeal from the PCRA Order July 13, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0401251-1996


BEFORE:      BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 10, 2017

        James Frazier appeals pro se1 from the order entered July 13, 2016, in

the Court of Common Pleas of Philadelphia County that dismissed, as

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   Former Justice specially assigned to the Superior Court.

1  On December 9, 2016, this Court granted counsel’s “Motion to be Relieved
as Counsel,” and directed the trial court to determine Frazier’s eligibility for
court-appointed counsel within 60 days. Order, 12/9/2016. Our Order
directed that if Frazier was found ineligible for court-appointed counsel, then
he should notify this Court within 20 days of the notification of ineligibility
whether he intends to retain new counsel or represent himself on appeal. Our
Order further advised that the failure of Frazier to notify this Court of his
intention to proceed with the appeal within 20 days of the trial court’s
determination of ineligibility would result in dismissal of the appeal.

      On December 23, 2016, the PCRA court entered its order, finding Frazier
was ineligible for court-appointed counsel. Thereafter, Frazier timely notified
this Court of his intent to represent himself in this appeal.
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untimely, his serial2 petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Frazier claims he is entitled to

PCRA relief under Miller v. Alabama, 567 U.S. 460 (2012)3 and

Montgomery v. Louisiana, 136 S. Ct. 718 (January 25, 2016).4 We disagree

and, therefore, affirm.

        Frazier was convicted by a jury of murder in the first degree and

possession of an instrument of crime (PIC).5 The trial court sentenced Frazier

to a mandatory term of life imprisonment for first degree murder, and a

consecutive sentence of one to two years’ imprisonment for PIC. Frazier was

granted the right to appeal nunc pro tunc, and this Court affirmed the

judgment of sentence on January 13, 2000. Commonwealth v. Frazier, 752

A.2d 420 (Pa. Super. 2000) (unpublished memorandum). Frazier did not seek

further review.

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2The PCRA court states that this is Frazier’s sixth petition; the Commonwealth
represents that this is Frazier’s fifth petition. See PCRA Court Opinion,
7/13/2016, at 1; Commonwealth’s Brief, at 6.

3 In Miller, the Unites States Supreme Court held 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.’” 567
U.S. at 465 (emphasis added).

4 In Montgomery, the Supreme Court held that Miller was a new substantive
right that, under the United States Constitution, must be applied retroactively
in cases on state collateral review. 136 S.Ct. at 736.

5   18 Pa.C.S. §§ 2502(a) and 907, respectively.




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       Frazier filed the instant, serial PCRA petition on March 9, 2016, and,

following dismissal of the petition by the PCRA court, Frazier filed this appeal. 6

       In reviewing an order denying post-conviction relief, we examine

whether the trial court’s determination is supported by evidence of record and

whether it is free of legal error. Commonwealth v. Robinson, 139 A.3d 178,

185 (Pa. 2016).

       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. 42 Pa.C.S. §

9545(b)(1).     Frazier does not dispute that the present petition is patently

untimely, but contends he is entitled to review pursuant to the PCRA’s new

constitutional right exception, 42 Pa.C.S. § 9545(b)(1)(iii), 7 based upon

Miller/Montgomery. The PCRA court concluded that Frazier is not entitled

to relief under these decisions because Frazier was 22 years of age when he

committed the murder, and Miller’s holding only applies to defendants who
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6 The PCRA court did not order Frazier to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion on November 29, 2016, in which it adopted the reasoning set
forth in its July 13, 2016 opinion. See Pa.R.A.P. 1925(a).

7 Section 9545(b)(1)(iii) provides an exception to the PCRA time bar when
there 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).



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were under the age of 18 at the time of their crimes. We agree with the PCRA

court’s determination.

       Frazier contends that Miller should be extended to individuals such as

himself on the basis that “he was developmentally an adolescent and

possessed age-related characteristic of youth” at the time he committed the

murder. Frazier’s Brief at 4. This argument has been previously considered

and rejected by this Court.

       In Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016), the

nineteen-year-old defendant convicted of homicide claimed he was a

“technical juvenile” and relied on neuroscientific theories pertaining to

immature brain development to support his claim. The Furgess Court relied

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

appeal denied, 81 A.3d 75 (Pa. 2013), “that petitioners who were older than

18 at the time they committed murder are not within the ambit of the Miller

decision and therefore may not rely on that decision to bring themselves within

the time-bar exception in Section 9545(b)(1)(iii).” 8   Furgess, supra, 149
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8 In Cintora, the co-defendants, who were 19 and 21 years old at the time
they committed second degree murder, invoked Miller to overcome the
untimeliness of their PCRA petition, arguing that a human brain does not fully
develop until the age of 25 and that the holding of Miller was applicable
pursuant to the Equal Protection Clause. In rejecting these arguments, this
Court stressed that the co-appellants’ “contention that a newly-recognized
constitutional right should be extended to others does not render their
petition timely pursuant to section 9545(b)(1)(iii).” 69 A.3d at 764 (emphasis
in original).




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A.3d at 94. Moreover, the Furgess Court found “nothing in Montgomery

undermines” this holding in Cintora. Id.9

        Although Frazier attempts to distinguish Furgess and Cintora,

contending his argument that Miller should apply is premised on “his age in

combination with his specific characteristics of youth and experiences of

childhood,”10 we conclude that Furgess and Cintora are controlling in this

case.     Accordingly, Frazier’s claim that the right in Miller/Montgomery

applies to his case is without merit.

        In sum, the PCRA court properly found that Frazier’s PCRA petition is

untimely and that Frazier failed to establish a statutory exception to the time

bar.    Because we have no jurisdiction to review this untimely petition, we

affirm.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017


____________________________________________


9 The Furgess Court acknowledged, however, that Cintora's additional
holding, that Miller had not been applied retroactively, was “no longer good
law” after Montgomery. Furgess, supra, 149 A.3d at 94.

10   Frazier’s Reply Brief at 1.

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