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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

HAKIM ROBINSON

                        Appellant                  No. 3718 EDA 2016


               Appeal from the PCRA Order October 25, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0208872-2001


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 13, 2017

     Hakim Robinson appeals from the order denying his second PCRA

petition as untimely. We affirm.

     On April 30, 2002, a jury convicted Appellant of second-degree

murder, robbery, burglary, and conspiracy. The convictions stemmed from

the August 29, 2000 conspiracy among Appellant, Robert Jones, and Fred

Porter to rob Richard Williams, Jr., a drug dealer in West Philadelphia.

During the course of the robbery, Porter, a juvenile, fatally shot Williams.

Appellant was twenty-one at the time.         The trial court imposed life

imprisonment without the possibility of parole for murder and an aggregate

term of two to six years for the remaining offenses. On July 9, 2003, we

affirmed the judgment of sentence.     See Commonwealth v. Robinson,


* Former Justice specially assigned to the Superior Court.
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832 A.2d 543 (Pa.Super. 2003) (unpublished memorandum).             Our High

Court dismissed the ensuing allowance of appeal as improvidently granted

on May 10, 2004. See Commonwealth v. Robinson, 851 A.2d 832 (Pa.

2004).

        Appellant filed a timely, counseled PCRA petition, which the PCRA

court denied on March 22, 2006.       We affirmed that order on August 27,

2007.     He filed a second PCRA petition on June 27, 2012, invoking the

United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460

(2012), which prohibits the imposition of a mandatory sentence of life

imprisonment without the possibility of parole if the defendant was a

juvenile when he committed the crime. Appellant asserted that the principle

should be extended to adult co-conspirators. The PCRA court dismissed the

petition as untimely. Appellant did not appeal.

        On June 5, 2015, Appellant filed his third PCRA petition.   The initial

petition asserted a previously unknown fact regarding an alibi witnesses,

Lamont Wright, who Appellant claimed was not available during trial. The

PCRA court responded on March 15, 2016, by issuing notice of its intent to

dismiss the petition without hearing. On the same date, Appellant amended

his petition to invoke what he styled as “the new scientific fact that just

became available” on January 25, 2016 in Louisiana v. Montgomery, 136

S.Ct. 718 (2016). See Amended Third PCRA Petition, 3/15/16, at 1. The

PCRA court dismissed the petition as untimely. This timely appeal ensued.

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       Appellant asserts two issues for our review:

       1. Did the PCRA court err in finding that the [third] PCRA petition
       was untimely filed, when the [petition asserted] new scientific
       brain facts [and] was filed within 60 days of the new facts . . .
       requiring a remand for the PCRA court to conduct an evidentiary
       hearing with the appointment of counsel?

       2. Did the PCRA court err in finding that the [third] PCRA petition
       was untimely filed, when the new scientific brain evidence facts
       directly altered Appellants conviction and sentence and an
       evidentiary hearing was required to develop the novel claims in
       light of the change in law and new facts and evidence that timely
       filed under the exception to the timebar?

Appellant’s brief at vi.1

       We review a PCRA court order to determine whether the PCRA court’s

determination is supported by the certified record and free of legal error.

Our Supreme Court has stated, “[a]n appellate court reviews the PCRA

court's findings of fact to determine whether they are supported by the

record, and reviews its conclusions of law to determine whether they are

free from legal error." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014). “The scope of review is limited to the findings of the PCRA court and

the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Id.

       All PCRA petitions must be filed within one year of the date a

defendant's judgment becomes final unless an exception to the one-year
____________________________________________


1 Appellant abandoned his initial newly-discovered-evidence claim relating to
alibi witness Lamont Wright. See Appellant’s brief at 10. n.1.



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time restriction applies. 42 Pa.C.S. § 9545(b)(1).         If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

(citation omitted).    We review that legal conclusion de novo. Id.           As

Appellant’s sentence became final during 2004, when the period to file a

petition for writ of certiorari with the United States Supreme Court expired,

the instant petition is timely only if one of the statutory exceptions applies.

      Section 9545 provides the following three exceptions that allow for

review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts that could not have been ascertained by the exercise of due

diligence; and (3) a newly-recognized constitutional right that has been held

to apply retroactively. 42 Pa.C.S. § 9545 (b)(1)(i)-(iii). In addition, any

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

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

      Instantly, Appellant attempts to circumvent the PCRA time-bar by

invoking our Supreme Court’s holding in Louisiana v. Montgomery, 136

S.Ct. 718 (2016), which gave retroactive effect to its prior holding in Miller,

supra, the case Appellant invoked in his second PCRA petition.         He levels

two   interrelated    exceptions.     First,   Appellant   contends   that   the

Montgomery Court disclosed “new scientific brain facts” that form an

exception pursuant to § 9545(b)(1)(ii), regarding previously unknown facts.

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Ostensibly, the new “brain fact” that Appellant invokes herein is the United

States Supreme Court’s recognition in Miller and retroactive application in

Montgomery      that   the   brain   of    a   juvenile   offender     is    sufficiently

underdeveloped to warrant the prohibition of mandatory life sentences

without the possibility of parole.        From that general principle, Appellant

extrapolates that the brain of his juvenile codefendant, Fred Porter, “was

legally defective[, thus,] breaking the chain and legally nullifying all statutes

in this case as they apply to appellant.” Appellant’s brief at 7. Appellant’s

second exception is more conventional.              Essentially, he argues that

Montgomery espoused a newly-recognized constitutional right that has

been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(ii).

      Both of Appellant’s contentions are predicated upon the assertion that

the Supreme Court’s holding in Miller, supra, should be extended to him

under the equal protection clause insofar as he is entitled to the same relief

as his juvenile co-defendant who committed the murder. In support of this

proposition, Appellant cites Commonwealth v. Cruz, 851 A.2d 870 (Pa.

2004), an unrelated case where our High Court concluded that, with regard

to purely legal issues, the disparate treatment of identically situated

codefendants was improper under the circumstances of that case. Appellant

posits that, since he filed the instant petition within sixty days of

Montgomery,      he    established   both      exceptions   to   the        PCRA    time




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requirements pursuant to § 9545(b)(1)(ii), and (iii). We address the issues

collectively, and for the following reasons, we deny relief.

      Stated plainly, neither Montgomery nor Miller is applicable herein

because Appellant was not a juvenile when he committed his crimes. It is

well ensconced that Miller does not apply to non-juvenile offenders.

Moreover, this Court is not empowered to extend Miller to classes beyond

juveniles.     See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super.

2016).       Hence, the retroactive application of Miller, as announced in

Montgomery, has no application herein. Further, Appellant’s reliance upon

Cruz, supra, is misplaced.      In contrast to Appellant’s protestations, he is

not similarly situated with his juvenile co-defendant. As we have indicated

throughout this memorandum, Appellant was twenty-one years old when the

murder occurred and Miller and Montgomery simply do not apply to non-

juvenile offenders. Appellant is not entitled to relief.

      As neither Miller, supra nor Montgomery, supra can form the basis

of an exception to the PCRA time requirements under either § 9545 (b)(1)

(ii) or (iii), the instant PCRA petition is untimely and without any applicable

exceptions to the PCRA time-bar.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




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