J-S53020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN L. GANS                              :
                                               :
                       Appellant               :   No. 3517 EDA 2017

                Appeal from the PCRA Order September 12, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0216041-1974


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 20, 2019

        Kevin L. Gans appeals from the order entered September 12, 2017, in

the Philadelphia County Court of Common Pleas dismissing, as untimely filed,

his serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Gans seeks relief from the judgment of sentence of an

aggregate term of life imprisonment, imposed March 24, 1975, following his

jury conviction of first-degree murder, and related charges, for the stabbing

death of Donald Charles. On appeal, Gans argues the PCRA court erred in

denying his petition as untimely without first conducting a hearing on his

invocation of the newly discovered facts exception to the PCRA’s time-for-filing

requirement. For the reasons below, we affirm.
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9546.
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       The facts underlying Gans’ offense and the procedural history since his

October, 1974, conviction are well-known to the parties and need not be

recited herein. In summary, Gans was 18 years old (d.o.b. 3/17/1955) when

he murdered the victim on January 30, 1974. His conviction has been upheld

on direct appeal and in numerous collateral attacks. See Commonwealth v.

Gans, 631 A.2d 1367 (Pa. Super. 1993) (unpublished memorandum at 1-4),

appeal denied, 641 A.2d 583 (Pa. 1994). Most recently, on March 15, 2016,

Gans filed the instant PCRA petition, pro se, seeking relief from his sentence

of life imprisonment pursuant to the United States Supreme Court’s decisions

in Miller v. Alabama 567 U.S. 460 (2012), and Montgomery v. Louisiana,

___ U.S. ___, 136 S.Ct. 718 (2016),2 and asserting his claim satisfied the

newly-recognized constitutional right exception to the PCRA’s time-for-filing

requirements set forth in 42 Pa.C.S. § 9545(b)(1)(iii). See Motion for Post

Conviction Relief, 3/15/2016, at 3. He filed an amended petition on November

15, 2016.

       On July 24, 2017, the PCRA court sent Gans notice of its intent to dismiss

the petition as untimely filed without first conducting an evidentiary hearing

____________________________________________


2In Miller, the Supreme Court held “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, supra,
567 U.S. at 465 (emphasis supplied). Subsequently, in Montgomery, the
Court found its decision in Miller constituted a new substantive rule that must
be applied retroactively to cases on collateral review. Montgomery, supra,
___ U.S. at ___, 136 S.Ct. at 736.



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pursuant to Pa.R.Crim.P. 907. The court emphasized that Gans’ sentence was

“outside the reach of the Supreme Court’s Miller decision” because Gans was

“over the age of eighteen at the time of the offense.”            Notice Pursuant to

Pennsylvania Rule of Criminal Procdure 907, 7/24/2017. Gans filed a timely

pro se reply, asserting (1) the court erred in rejecting his claim for relief which

relied    upon    “the   new     discovered    evidence,   via,   newly   recognized

Constitutional issue[;]” and (2) the court’s denial of relief was based upon a

“fabrication” that Gans was “over the age of eighteen during the offense.”

Reply to the Court’s Notice of Dismissal to the Motion for Post Conviction

Collateral Relief, 8/7/2017, at ¶¶ 4, 9. On September 12, 2017, the PCRA

court dismissed Gans’ petition as untimely. Gans filed a notice of appeal on

October 13, 2017.3

         Although Gans purports to raise three issues on appeal, all three claims

are interrelated.     Gans contends the PCRA court erred when it denied his

petition as untimely without first conducting an evidentiary hearing.            He

argues his petition meets the newly discovered facts exception to the timing
____________________________________________


3 At first glance, it appears Gans’ notice of appeal was untimely filed.
However, while the PCRA court entered the order dismissing the petition on
September 12, 2017, the docket reveals the order was not sent to Gans until
September 13, 2017. See Pa.R.A.P. 108(a)(1). Accordingly, Gans had until
October 13, 2017, to file a timely notice of appeal. See Pa.R.A.P. 903(a).
The envelope, which contained Gans’ notice of appeal, is time-stamped
October 13, 2017. Therefore, pursuant to the prisoner mailbox rule, Gans’
notice of appeal was timely filed. See Commonwealth v. Wilson, 911 A.2d
942, 944 n.2 (Pa. Super. 2006) (notice of appeal filed by incarcerated
defendant proceeding pro se “is deemed filed when placed in the hand of
prison authorities for mailing.”).


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requirements because new evidence reveals “the brain does not develop until

the age of twenty five according to brain scientists.”     Gans’ Brief at 11.

Therefore, Gans maintains the relief provided by Miller and Montgomery to

defendants who are under the age of 18 at the time they commit murder

should be extended to “individuals aged above eighteen.” Id. at 7. Gans

details his own school and psychological records, which he insists demonstrate

his mental shortcomings at the time of the crime. See id. at 8-9. He also

insists the PCRA court “used falsified statements” to dismiss his petition. Id.

at 11. In particular, he notes the court stated in the July 24, 2017, dismissal

order that Gans was “over the age of eighteen at the time of the offense,”

which placed his sentence “outside the reach” of Miller, when, in fact, he was

18 years, and 10 months’ old at the time of the stabbing. Id.

      “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)

(internal punctuation and citation omitted).    Further, “a PCRA court may

decline to hold a hearing on the petition if petitioner’s claim is patently

frivolous or lacks support from either the record or other evidence.”

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129

(2006).




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      Here, the PCRA court concluded Gans’ petition was untimely filed, and

Gans failed to establish the applicability of one of the time-for-filing

exceptions. See PCRA Court Opinion, 9/12/2017, at 1.

      The PCRA timeliness requirement … 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,

134 S.Ct. 2695 (U.S. 2014).

      A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Here, it is evident

Gans’ petition was untimely filed. His judgment of sentence was affirmed by

the Pennsylvania Supreme Court on March 17, 1976, and he did not petition

the   United   States   Supreme    Court    for   a   writ   of   certiorari.   See

Commonwealth v. Gans, 353 A.2d 427 (Pa. 1976).

      Nevertheless, an untimely petition may still be considered if “the petition

alleges and the petitioner proves” one of the following three time-for-filing

exceptions:

         (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


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         (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). It is well-settled that:

      [E]xceptions to the time bar must be pled in the PCRA petition,
      and may not be raised for the first time on appeal. See
      Commonwealth v. Beasley, 559 Pa. 604, 609, 741 A.2d 1258,
      1261 (1999); see also Pa.R.A.P. Rule 302(a) (issues not raised
      in the lower court are waived and cannot be raised for the first
      time on appeal). Additionally, the PCRA mandates that any
      petition invoking an exception to the time bar requirement be filed
      within 60 days of the date the claim could have been presented.
      See 42 Pa. Cons.Stat. Ann. § 9545(b)(2).

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal

denied, 959 A.2d 927 (Pa. 2008).

      In his PCRA petition, Gans invoked the newly recognized constitutional

right timeliness exception codified at Section 9545(b)(1)(iii). See Motion for

Post Conviction Relief, 3/15/2016, at 3. Gans argued the Supreme Court’s

rulings in Miller and Montgomery entitled him to relief from his sentence of

life imprisonment without parole, and that he filed his petition within 60 days

of the Montgomery decision. The PCRA court, however, correctly determined

Gans’ sentence was “outside the reach” of Miller because Gans was over the

age of 18 when he committed the offense. Notice Pursuant to Pennsylvania

Rule of Criminal Procedure 907, 7/24/2017. Indeed, an en banc panel of this

Court recently confirmed that Miller applies only to those who were under

the age of 18 at the time they committed the offense, and that “age is the

sole factor in determining whether Miller applies to overcome the PCRA time-


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bar[.]” Commonwealth v. Lee, ___ A.3d ___, ___, 2019 PA Super 64 *9

(Pa. Super. March 1, 2019) (en banc). The fact that Gans was 18 years, and

10 months old is of no moment; the defendant in Lee was 18 years and nine

months old when she served as a lookout during an attempted robbery that

ended in murder. See id. at ___, 2019 PA Super 64 at *2. Therefore, the

newly recognized constitutional right exception provides Gans with no relief.

       Although Gans raised only the newly-recognized constitutional right

exception in his PCRA petition, on appeal, he argues he is entitled to relief

pursuant to the newly discovered facts exception set forth in Section

9545(b)(ii).    See Gans’ Brief at 10-11. As noted earlier, he contends “he

uncovered newly discovered evidence that the brain does not develop until

the age of twenty five according to brain scientists[,]” and this research “did

not exist at the time of [his] arrest.” Id. at 8, 11. This argument, too, fails.

       Preliminarily, we note “exceptions to the time bar must be pled in the

PCRA petition, and may not be raised for the first time on appeal.” Burton,

supra, 936 A.2d at 535 (citation omitted).        However, to the extent Gans

raised this exception in his response to the PCRA court’s Rule 907 notice of

intent to dismiss, we will consider his claim.4


____________________________________________


4 In his Rule 907 response, Gans stated “[t]he court erred in rejecting [his]
request for Post Conviciton Relief Act, which relied on the new discovered
evidence, via, newly recognized Constitutional issue.” Reply to the Court’s
Notice of Dismissal to the Motion for Post Conviction Collateral Relief,
8/7/2017, at ¶¶ 4. Because Gans is proceeding pro se, we will construe this
response as invoking the exception set forth in Section 9545(b)(1)(ii).

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       “The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

petition and could not have learned those facts earlier by the exercise of due

diligence.”    Commonwealth v. Fennell, 180 A.3d 778, 782 (Pa. Super.

2018) (en banc) (citation omitted), appeal denied, 192 A.3d 1111 (Pa. 2018).

“Due diligence demands that the petitioner take reasonable steps to protect

his own interests.” Commonwealth v. Robinson, 185 A.3d 1055, 1063 (Pa.

Super. 2018) (en banc) (citation omitted), appeal denied, 192 A.3d 1105 (Pa.

2018).

       A petitioner must explain why he could not have learned
       the new fact(s) earlier with the exercise of due diligence.
       This rule is strictly enforced. Additionally, the focus of this
       exception is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.

Fennell, 180 A.3d at 782 (emphasis in original).

       Here, although Gans asserts his claim is based upon newly discovered

evidence by “brain scientists,” he does not explain how or when he learned of

this new information. Gans’ Brief at 11. He cites to the Miller decision, which

was filed in 2012, as well as the Supreme Court’s decision in Graham v.

Florida, 560 U.S. 48 (2010), and a decision by an Illinois Appellate Court,

People v. House, 72 N.E. 3d 357 (Ill. Ct. App. 2015),5 all of which were filed

more than 60 days before his PCRA petition.

____________________________________________


5We note, too, the Illinois Supreme Court later vacated the judgment in
House, and directed the appellate court to reconsider the appeal in light of a



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        Accordingly, we agree with the PCRA court that Gans’ petition was

untimely filed, and Gans did not prove the applicability of any of the time for

filing exceptions.

        Order affirmed.

        Judge Platt did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19




____________________________________________


subsequent ruling regarding the proportionality clause of the Illinois
Constitution. See People v. House, 111 N.E.3d 940 (Ill. 2018).


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