J-S31020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
GEORGE JONES,                           :
                                        :
                   Appellant            :   No. 1180 WDA 2016

                 Appeal from the PCRA Order July 11, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000410-1977


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

MEMORANDUM BY DUBOW, J.:                          FILED AUGUST 31, 2017

      Appellant, George Jones, appeals from the July 11, 2016 Order

entered in the Court of Common Pleas of Allegheny County dismissing his

seventh Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.     After careful review, we affirm on the basis that

Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction

to review the Petition.

      On October 18, 1977, a jury convicted Appellant of Robbery and

related offenses for his participation in an armed robbery of an insurance

agency that resulted in the shooting of a police officer.     The trial court

subsequently sentenced Appellant to an aggregate term of thirty to sixty

years’ incarceration.     On September 12, 1980, this Court affirmed

Appellant’s Judgment of Sentence, and the Pennsylvania Supreme Court
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denied Appellant’s Petition for Allowance of Appeal on December 22, 1980.1

See Certified Record, Docket Entry 25. Appellant did not seek review by the

United States Supreme Court. Appellant’s Judgment of Sentence, therefore,

became final on March 23, 1981.2 See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.

Ct. R. 13.

        On March 28, 2016, more than thirty-five years after his Judgment of

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

seventh, raising claims of a newly-recognized constitutional right and newly-

discovered facts.3     On March 29, 2016, the PCRA court issued a Notice of

____________________________________________


1
  We note that this Court has previously stated, in numerous filings, that the
Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal on December 8, 1980. Our review of the certified record reveals that
the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal
on December 18, 1980, and docketed the Order on December 22, 1980.
See Certified Record, Docket Entry 25. This change in date does not affect
our disposition.
2
    March 22, 1981 was a Sunday. See 1 Pa.C.S. § 1908.
3
  Appellant’s Petition is entitled “Petition for Writ of Habeas Corpus Pursuant
to the Post Conviction Relief Act Statutes.” It is well established that the
PCRA is intended to be the sole means of achieving post-conviction relief.
42 Pa.C.S. § 9542.         Moreover, “the writ of habeas corpus has been
subsumed into the PCRA for claims that are cognizable under the [PCRA.]”
Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006)
(citation omitted).     Accordingly, we will treat Appellant’s Petition as a
Petition filed under the PCRA. See, e.g., Commonwealth v. Deaner, 779
A.2d 578, 580 (Pa. Super. 2001) (concluding a collateral petition that raises
an issue that the PCRA statute could remedy is to be considered a PCRA
petition).




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Intention to Dismiss Pursuant to Pa.R.Crim.P. 907 (“Notice to Dismiss”)

advising Appellant of its intent to dismiss his Petition without a hearing

because the Petition was untimely. Appellant filed a timely pro se response

entitled Relator’s Response to the Court’s Notice of Intention to Dismiss

Pursuant to Rule 907 (“Response”). On July 11, 2016, after consideration of

Appellant’s Response, the PCRA court dismissed Appellant’s Petition without

a hearing. Appellant timely appealed.

      Appellant raises the following two issues on appeal:

   1. Whether the      record   supports    the   learned   court’s   factual
      conclusions?

   2. Whether the trial court erred as a matter of law failing to hold an
      evidentiary hearing?

Appellant’s Brief at vii (some capitalization omitted).

      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). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)



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(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite). Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

       Here, it is undisputed that Appellant filed the instant PCRA Petition well

beyond the one-year time limitation set forth in 42 Pa.C.S. § 9545(b)(1) and

that his Petition is facially untimely.4



____________________________________________


4
   We recognize that Appellant was convicted and sentenced prior to the
January 16, 1996 amendments to the PCRA, governing the time within which
petitions must be filed. Our Pennsylvania Supreme Court has held, “where
the conviction became final before the effective date of the act, January 16,
1996, a PCRA petition, in order to be timely, must be filed within one year of
the effective date of the act, and it must be the first PCRA petition to be
eligible for this one year grace period.” Commonwealth v. Crawley, 739
A.2d 108, 109 (Pa. 1999). Additionally, “there is no provision of a grace
period for the filing of a second petition.” Id. Thus, Appellant’s seventh
PCRA Petition remains facially untimely.




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      However, Pennsylvania courts may consider an untimely PCRA

petition, if the appellant pleads and proves one of the three exceptions set

forth in 42 Pa.C.S. § 9545(b)(1).        Any petition invoking a timeliness

exception must be filed within sixty days of the date the claim could have

been presented. 42 Pa.C.S. § 9545(b)(2).

      Appellant initially invokes the Section 9545(b)(1)(iii) exception to

challenge the legality of his sentence, which allows an untimely filing if the

petition asserts 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).

      Although a legality of sentence claim cannot be waived, it must be

timely raised, i.e., within sixty days of the date the claim could have been

presented. 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 932 A.2d

179, 182 (Pa. Super. 2007); Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (holding that ”[a]lthough 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”).

      In support of his challenge, Appellant relies on the holding in

Montgomery v. Louisiana, 136 S.Ct. 718 (U.S. 2016). In Montgomery,

the United States Supreme Court held that the rule announced in Miller v.

Alabama, 132 S.Ct. 2455 (U.S. 2012), prohibiting mandatory life sentences


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without parole for juvenile offenders, is a substantive constitutional rule that

applies retroactively on state collateral review. In this case, Appellant was

not a juvenile at the time of his crime and did not receive a mandatory life

sentence. Thus, Miller does not apply.

      Nevertheless, Appellant argues that the holding in Miller should be

extended to him because he was twenty-five years old at the time of the

crime and “science has concluded that there are structural immaturities

present in brains that are chronologically below the age of [twenty-six].”

Appellant’s Brief at 8. This Court has previously rejected this argument.

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

appellants, who were twenty-one and nineteen years old at the time of their

crimes, argued that the holding in Miller should be extended to them on

post-collateral review because they were under twenty-five years of age at

the time they committed a murder, and, as such, had immature brains. This

Court declined to extend the holding in Miller to appellants and concluded,

“we need not reach the merits of [a]ppellants’ argument, as their 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).”

Id. at 764 (emphasis in original).

      We recently reaffirmed Cintora’s holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). In Furgess, the appellant – who

was nineteen years old when he committed his crimes – asserted that Miller


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should apply to him because he was a “technical juvenile” based on

“neuroscientific theories regarding immature brain development . . . .” Id.

at 94. Relying on Cintora, this Court once again rejected the argument that

Miller should extended to individuals with immature brains and restated

that “petitioners who were older than [eighteen] 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).” Id.

      In light of our holdings in Cintora and Furgess, Appellant’s contention

that Miller should apply to him fails, and, thus, Appellant failed to plead and

prove that a newly-recognized constitutional right applied to him.

      Appellant   next   invokes the    Section 9545(b)(1)(ii)   exception to

challenge his conviction, which allows an untimely filing if the petition

asserts newly-discovered facts.    42 Pa.C.S. § 9545(b)(1)(ii).      To prevail

under this section, Appellant is required to establish that: (1) the fact upon

which he bases his claim was unknown to him; and (2) he could not have

discovered the fact through due diligence.     Commonwealth v. Cox, 146

A.3d 221, 230 (Pa. 2016); 42 Pa.C.S. § 9545(b)(1)(ii). “Due diligence does

not require perfect vigilance and punctilious care, but merely a showing the

party has put forth reasonable effort to obtain the information upon which a

claim is based.” Cox, supra at 230 (internal quotation marks and citation

omitted). As stated previously, a petition invoking this exception must be


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filed within sixty days of the date the claim could have been presented. 42

Pa.C.S. § 9545(b)(2).

       In his PCRA Petition, Appellant contends that his “co-defendants”

Rodney Jackson and Wayne Hawthorne were both unavailable to testify at

trial because they escaped custody, and that their testimony would provide

exculpatory evidence that Appellant did not shoot the police officer or

commit the robbery. See PCRA Petition, filed 3/28/16, at 2. After the PCRA

court issued the Notice to Dismiss stating that Appellant’s PCRA Petition was

barred by the one-year statute of limitations, Appellant filed a Response

asserting, inter alia, that he filed the PCRA Petition within sixty days of

discovering that both witnesses were willing to testify.          Appellant stated:

“both have resisted coming forward for their own reasons until March 1,

2016. This exonerating testimony was completely unavailable to [Appellant]

until now in spite of his due diligence. The instant petition was filed March

25, 2016.” Response, filed 4/22/16, at 3.

       Appellant failed to plead and prove that he filed the instant PCRA

Petition within sixty days of the date that the claim could have been

presented as required by Section 9545(b)(2).             In his Response, after the

PCRA    court   notified   him   that   his   Petition   was   untimely,   Appellant

conveniently designated March 1, 2016, as the day that he discovered both

witnesses were willing to testify.      Appellant does not explain any of the

circumstances surrounding this discovery, including why the witnesses were


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unwilling to testify for the last thirty-five years since his judgment became

final, what changed their collective minds, and how he actually learned of

their willingness to testify.

       In failing to explain the circumstances surrounding his discovery of

this new fact – that both witnesses are now willing to testify – Appellant also

fails to plead and prove that this fact was previously unknown to him and

that he could not have discovered this fact through due diligence. Although

he asserted in his Response that he had exercised due diligence, Appellant

does not convey the efforts he made in the thirty-five years since his

Judgment of Sentence became final. As such, Appellant does not qualify for

a time-bar exception under 42 Pa.C.S. § 9545(b)(1)(ii).

      In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s untimely Petition without an evidentiary hearing. 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.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017

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