J-S57040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JULIUS A. EDWARDS

                            Appellant                No. 563 EDA 2015


              Appeal from the PCRA Order dated January 30, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0810902-1998


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 10, 2015

       Appellant Julius A. Edwards appeals from an order of the Court of

Common Pleas of Philadelphia County (PCRA court), which dismissed as

untimely Appellant’s request for collateral relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-46.       For the reasons set forth

below, we affirm.

       The PCRA court summarized the facts and procedural history of this

case as follows:

             On September 22, 1999, [Appellant] was found guilty in a
       bench trial before the Honorable Willis Berry of [s]econd degree
       murder, [r]obbery, and [c]riminal [c]onspiracy, and [p]ossessing
       an [i]nstrument of [c]rime (PIC).[1] He was sentenced to life
       without the possibility of parole for [m]urder, with [r]obbery
       merging, and the PIC and [c]onspiracy convictions running
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1
 The record reveals that Appellant was 21 years old on July 15, 1998 when
he committed the murder in this case.
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       concurrent. [Appellant] appealed, and [this Court] affirmed the
       judgment of sentence on June 20, 2001. The Pennsylvania
       Supreme Court denied his petition for allowance of appeal on
       December 19, 2001.

              On March 10, 2003, [Appellant] filed his first pro se PCRA
       petition. Counsel was appointed, and a hearing was held. After
       review, the [PCRA court] dismissed his first PCRA petition on
       September 24, 2004. [This Court] affirmed the denial of his first
       PCRA petition on August 25, 2006. The Pennsylvania Supreme
       Court denied his petition for allowance of appeal on April 24,
       2007.

              On April 30, 2012, [Appellant] filed the instant PCRA
       petition[, which he amended on July 17, 2012 to challenge his
       sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012)2].
       After conducting an extensive and exhaustive review of these
       filings, the record and applicable case law, [the PCRA court]
       found that [Appellant’s PCRA petition] was untimely filed.
       Therefore, [the PCRA court concluded that it] did not have
       jurisdiction to consider [Appellant’s] PCRA petition and it was
       dismissed.

PCRA Court Opinion, 3/18/15, at 1-2.             Appellant timely appealed to this

Court.

       On appeal,3 Appellant argues only that the PCRA court erred in

dismissing as untimely his petition for collateral relief because he overcame

the PCRA’s time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii). In support

of this argument, Appellant points out that Miller applies sub judice,

because his brain was “immature” at the time he perpetrated the murder in

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2
  The Court in Miller held that “[m]andatory 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, 132
S. Ct. at 2460.
3
  “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. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).



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this case.     As a result, Appellant argues that his sentence of life

imprisonment is unconstitutional.

     The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

     (b) Time for filing petition.--

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

             (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

             (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.

     (2) Any petition invoking an exception provided in paragraph (1)
     shall be filed within 60 days of the date the claim could have
     been presented.

     (3) For purposes of this subchapter, a judgment 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.A. § 9545(b) (emphasis added).           Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014).




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     Instantly, it is undisputed that Appellant’s second PCRA petition was

facially untimely. Appellant’s argument that he overcomes the PCRA’s time-

bar because of Miller fails for the following reason. Appellant has failed to

plead and prove that Miller created a constitutional right applicable sub

judice. Instantly, there is no dispute that Appellant was twenty-one years

old when he committed the murder.          As we noted earlier, however, the

United States Supreme Court’s holding in Miller was clear in that only

mandatory life imprisonment without parole for those under the age of

eighteen at the time of their crimes was unconstitutional. Moreover, to the

extent Appellant argues that the condition of his brain at the time of the

crime brings this case within the purview of Miller, we disagree.         In

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

denied, 81 A.3d 75 (Pa. 2013), two appellants, who were nineteen and

twenty-one years of age at the time of their underlying crimes, and

sentenced to life imprisonment, claimed:

     [T]hat because Miller created a new Eighth Amendment right,
     that those whose brains were not fully developed at the time of
     their crimes are free from mandatory life without parole
     sentences, and because research indicates that the human mind
     does not fully develop or mature until the age of 25, it would be
     a violation of equal protection for the courts to treat them or
     anyone else with an immature brain, as adults. Thus, they
     conclude that the holding in Miller should be extended to them
     as they were under the age of 25 at the time of the murder and,
     as such, had immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to [S]ection

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9545(b)(1)(iii).”    Id. (emphasis added).       Thus, as in Cintora, Appellant’s

claim that Miller applied to the case sub judice based on his mental

development is without merit. Accordingly, we conclude that the PCRA court

did not err in dismissed as untimely Appellant’s second PCRA petition.4

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2015




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4
    Based on our conclusion, we need not address the retroactivity of Miller.



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