J-S38021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 JUAN TORRES.                             :
                                          :
                    Appellant             :    No. 2469 EDA 2018

             Appeal from the PCRA Order Entered July 30, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0609281-1989


BEFORE:    OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                       FILED SEPTEMBER 25, 2019

      Appellant, Juan Torres, appeals from the July 30, 2018 Order dismissing

as untimely his third Petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      On November 14, 1990, a jury convicted Appellant of First-Degree

Murder and related charges for the 1989 fatal shooting of Larry Duncan during

an illicit drug transaction in Philadelphia. Appellant was 18 years old at the

time of the murder. On April 9, 1991, the trial court imposed the mandatory

sentence of life imprisonment.     On January 8, 1992, this Court affirmed

Appellant’s Judgment of Sentence, and on November 5, 1992, the

Pennsylvania    Supreme    Court   denied     allowance   of   appeal.    See

Commonwealth v. Torres, 607 A.2d 1127 (Pa. Super. 1992) (unpublished

memorandum), appeal denied, 615 A.2d 1312 (Pa. 1992). Appellant did not

seek review by the United States Supreme Court. Appellant’s Judgment of

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Sentence, therefore, became final on February 3, 1993. See 42 Pa.C.S. §

9545(b)(3); U.S. Sup. Ct. R. 13.

       On August 12, 2012, more than nineteen years after his Judgment of

Sentence became final, Appellant filed the instant pro se PCRA Petition, his

third, raising a claim that his sentence is illegal under Miller v. Alabama, 567

U.S. 460 (2012).1 After a multi-year delay, on February 26, 2016, Appellant

filed a pro se Amended PCRA Petition averring that he was entitled to relief

under Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 Finally, on April

2, 2018, Appellant filed a pro se Supplemental PCRA Petition claiming that a

February 18, 2018 Philadelphia Inquirer newspaper article “alerted him of a

pattern of misconduct by Detective Devlin in other homicide cases, similar to

allegations he attempted to raise during his suppression hearing back on May

4, 1990, but was unsuccessful.” Supplemental PCRA Petition, 4/2/18, at 3.

Appellant also asserted that the article alerted him to a 2016 federal civil

complaint filed against Detective Devlin. Id.

       On April 17, 2018, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition as untimely without a

hearing. Appellant filed a timely pro se Response. On July 30, 2018, after

____________________________________________


1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470.

2In Montgomery, the U.S. Supreme Court held that its decision in Miller,
supra, applies retroactively. Montgomery, 136 S.Ct. at 732, 736.

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considering Appellant’s Response, the PCRA court dismissed Appellant’s

Petition as untimely. This timely pro se appeal followed.

     Appellant raises the following issues for our review:

     I.     Whether Appellant’s instant PCRA petition predicated upon
            the United States Supreme Court’s decision announced in
            [Miller], is timely filed under the purview of 42 Pa.C.S. §
            9545(b)(1)(iii)?

     II.    Whether the court’s imposition of an illegal mandatory life
            without parole sentence, for a homicide offense committed
            while appellant was a juvenile, violates the Eighth
            Amendment’s prohibition on [“]cruel and unusual
            punishments,[”] as a result of:

            (A)    Appellant is a juvenile under Pennsylvania Law; and

            (B)    Equal Protection demand’s Miller’s application.

     III.   Whether Appellant’s “after discovered evidence claim and
            Brady claim,” predicated upon the discovery of Detective
            Devlin’s unconstitutional interrogation tactics[,] is timely
            filed under purview of 42 Pa.C.S. 9545(b)(1)(i) & (ii); based
            upon the discovery of: (i) the Philadelphia Inquirer
            newspaper article; (ii) the federal civil complaint filed by
            Anthony Wright; and (iii) the district court’s decision in
            Anthony Wright’s Civil Complaint?

     Appellant’s Br. at 1-2.

     We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).     We give no such deference, however, to the court’s legal


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conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1).     Appellant’s Petition, filed more than nineteen years after his

Judgment of Sentence became final, is facially untimely.

       Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within 60 days of the date the claim could have been presented. 42 Pa.C.S §

9545(b)(2).3

       Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(iii), alleging that his sentence is illegal based on a newly

recognized constitutional right under Miller, which, he argues, is retroactive

in its application pursuant to Montgomery.        See Appellant’s Br. at 4; 42

Pa.C.S. § 9545(b)(1)(iii).




____________________________________________


3 Effective December 24, 2018, Section 9545(b)(2) now provides that “[a]ny
petition invoking an exception . . . shall be filed within one year of the date
the claim could have been presented.”

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      As long as this court has jurisdiction over the matter, a legality of

sentence issue is reviewable and cannot be waived.         Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).            However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which we

have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”).

      Appellant filed the Amended PCRA Petition on February 26, 2016, which

was within 60 days of the issuance of the Montgomery decision (decided

January 25, 2016).

      Nevertheless, Appellant’s Miller claim fails. Appellant correctly asserts

that the holding in Montgomery is that the rule announced in Miller, supra,

is substantive for purposes of retroactivity. However, because Appellant was

18 years old at the time he committed the murder, Miller is inapplicable. See

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating that the

holding in Miller is limited to those offenders who were juveniles at the time

they committed their crimes). Further, an en banc panel of this Court has

recently refused to render relief on the brain science argument that Appellant

raises in his Amended PCRA Petition and again in his Brief.                 See

Commonwealth v. Lee, 206 A.3d 1, 9-11 (Pa. Super. 2019) (en banc)

(holding that appellant, who was over 18 years of age at the time of her


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offense, could not invoke Miller as an exception to the PCRA time-bar, despite

her argument that “immature brain” studies would have established that her

brain was underdeveloped at time of her crime). See also Commonwealth

v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (rejecting the 19-year-old

appellant’s argument based on neuroscientific theories of brain development

that he is entitled to PCRA relief because he was a “technical juvenile” at the

time he committed his crimes). Accordingly, this claim fails to overcome the

PCRA time-bar.

       In his Supplemental PCRA Petition, Appellant attempts to invoke the

timeliness exception under Section 9545(b)(1)(ii), which requires Appellant to

plead and prove “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Appellant asserts that when he read

the February 18, 2018 newspaper article he learned the “previously unknown

fact” that Detective Devlin engaged in a pattern of misconduct in other

homicide cases, which, Appellant asserts, “mirror the misconduct that

occurred” in his case. Supplemental PCRA Petition, 4/2/18, at 3. To support

this argument, Appellant provided a copy of the newspaper article, a copy of

the federal civil complaint discussed in the newspaper article, and the district

court’s decision to deny a pre-trial Motion to Dismiss in the federal civil case.

See id. at Exhibit A, B. Appellant’s claim fails to overcome the PCRA time-

bar.


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       We agree with the PCRA court that “the newly-discovered information

simply support[s] a previously-known fact.”         PCRA Court Opinion at 4.

Specifically, Appellant introduces this evidence to support his claim that

Detective Devlin coerced his pre-trial statement confessing to the crime, a

“previously-known fact” that Appellant litigated unsuccessfully in a Motion to

Suppress prior to his trial.         Appellant presents documents that merely

constitute new sources for a previously-known fact, and, thus, Appellant’s

claim fails to raise an exception to the time-bar. See Commonwealth v.

Marshall, 947 A.2d 714, 720 (Pa. 2008) (explaining a petitioner does not

satisfy the “newly discovered facts” exception where he merely alleges a newly

discovered source for previously known facts).

       Appellant also attempts to invoke Section 9545(b)(1)(ii) by advancing

the argument that the Philadelphia District Attorney’s Office failed to disclose

information it had in its possession regarding Detective Devlin in violation of

its obligation under Brady v. Maryland, 373 U.S. 83 (1963).4 Supplemental

PCRA Petition at 29. Appellant relies on claims in the newspaper article and

federal civil complaint to support his argument that “the Philadelphia District

[A]ttorney’s Office was aware of Detective Devlin and other Philadelphia

Detectives[’] misconduct for decades.” Id. at 29, 31.

____________________________________________


4  In Brady, the U.S. Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87.0

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      To invoke this exception, Appellant must prove that, “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 of laws of this

Commonwealth or the Constitution of laws of the United States.” 42 Pa.C.S.

9545(b)(1)(i).

      Instantly, Appellant relies on the newspaper article’s report that the

information regarding Detective Devlin’s coercive tactics surfaced because the

Commonwealth disclosed files during discovery in a civil suit and failed to mark

them “confidential.” Supplemental PCRA Petition at 29. Appellant offers no

evidence that this actually occurred, that the files contain information relevant

to his claim, or that the files contained evidence that the Commonwealth

would be required to share under Brady. Accordingly, Appellant has failed to

overcome the PCRA time-bar with this claim.

      In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition as untimely.     The record supports the PCRA

court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/19




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