J-S38036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR EDWARDS                               :
                                               :
                       Appellant               :   No. 312 EDA 2019

             Appeal from the PCRA Order Entered January 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0209372-1995


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

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 06, 2019

        Appellant, Omar Edwards, appeals pro se from the order of the Court of

Common Pleas of Philadelphia County that dismissed his fourth petition filed

under the Post Conviction Relief Act (PCRA)1 as untimely. We affirm.

        Appellant was convicted by a jury on June 13, 1996 of first-degree

murder2 for killing a man in a drive-by shooting on October 28, 1994. At the

time that he committed this crime, Appellant was 19 years old. On January

27, 1997, the court sentenced Appellant to life imprisonment without parole

for this murder conviction.

        Appellant filed a direct appeal in February of 1997. A panel of this Court

dismissed the appeal on January 8, 1998, and Appellant did not seek
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. § 2502(a).



*    Retired Senior Judge assigned to the Superior Court.
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allowance of appeal in the Supreme Court of Pennsylvania. Appellant filed a

timely first PCRA petition on October 7, 1998, which was denied by the PCRA

court. This Court affirmed the denial of that first PCRA petition on September

11, 2000 and the Pennsylvania Supreme Court denied allowance of appeal on

February 6, 2001. In 2002 and 2015, Appellant filed two more unsuccessful

PCRA petitions.

       On February 26, 2016, Appellant filed the instant, pro se fourth PCRA

petition asserting that his sentence of life imprisonment without parole is

unconstitutional under the United States Supreme Court’s decision in Miller

v. Alabama, 567 U.S. 460 (2012), and the Equal Protection Clause, because

the rationale on which Miller held that mandatory sentences of life without

parole are unconstitutional for defendants under the age of 18 is equally

applicable to him. In the PCRA petition, Appellant asserted that he satisfied

exceptions to the PCRA’s time limits because Miller was held retroactive by

the United States Supreme Court in Montgomery v. Louisiana, 136 S.Ct.

718 (2016), on January 25, 2016.

       On September 17, 2018, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss Appellant's petition without a hearing

on the ground that it was untimely.3 Appellant submitted a letter in response

to the notice in which he argued the merits of the PCRA petition and requested



____________________________________________


3Neither Appellant nor the Commonwealth explains why no action was taken
with respect to the PCRA petition for over two years.

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a hearing. On January 2, 2019, the PCRA court dismissed Appellant’s PCRA

petition without a hearing. Appellant timely appealed this order to this Court.

      Appellant argues that the trial court erred in dismissing his PCRA petition

as untimely because his sentence of life imprisonment without parole is

allegedly unconstitutional under Miller. This argument is without merit.

      The PCRA provides that “[a]ny petition under this subchapter, 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 PCRA petition may be

filed beyond the one-year time period only if the convicted defendant pleads

and proves one of the following three 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

      (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.

Id. The PCRA’s time limit is mandatory and jurisdictional, and a court may

not ignore it and reach the merits of the PCRA petition, even where the

convicted defendant claims that his sentence is unconstitutional and illegal.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth

v. Lee, 206 A.3d 1, 6, 11 (Pa. Super. 2019) (en banc); Commonwealth v.



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Pew, 189 A.3d 486, 488 (Pa. Super. 2018); Commonwealth v. Woods, 179

A.3d 37, 42-43 (Pa. Super. 2017).

      Appellant’s judgment of sentence became final on February 9, 1998,

upon the expiration of the thirty-day period within which to file a petition for

allowance of appeal. 42 Pa.C.S. § 9545(b)(3). His time limit for filing any

PCRA petition was therefore February 9, 1999. The instant PCRA petition,

filed more than 17 years beyond that deadline, is patently untimely unless

Appellant alleged and proved one of the three limited exceptions set forth in

Sections 9545(b)(1)(i)-(iii).

      Appellant did not show that his PCRA petition was timely under any of

these exceptions. Appellant’s PCRA petition asserted a claim that his sentence

of life imprisonment without parole was unconstitutional under a new

constitutional right established by Miller. Section 9545(b)(1)(iii)’s exception

for newly recognized constitutional rights, however, applies only where the

defendant is entitled to relief under the holding of a United States or

Pennsylvania Supreme Court decision. 42 Pa.C.S. § 9545(b)(1)(iii); Lee, 206

A.3d at 10-11; Commonwealth v. Furgess, 149 A.3d 90, 93-94 (Pa. Super.

2016). While Miller recognized a new constitutional right and that right was

ruled retroactive by the United States Supreme Court in Montgomery v.

Louisiana, 136 S.Ct. at 732-37, those decisions and the decisions of our

Supreme Court have held only that mandatory life imprisonment without

parole is unconstitutional where the defendant was under the age of 18 at the

time of the crime.     Montgomery v. Louisiana, 136 S.Ct. at 725, 736

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(defendant was 17 years old); Miller, 567 U.S. at 465 (defendants were 14

years old, Court stated its holding as “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’”);

Commonwealth v. Machicote, 206 A.3d 1110, 1112 (Pa. 2019) (defendant

was 17 years old); Commonwealth v. Batts, 163 A.3d 410, 415 (Pa. 2017)

(defendant was 14 years old). Indeed, our Supreme Court has specifically

declined to apply Miller to defendants who were 18 or older.                See

Commonwealth v. Towles, 208 A.3d 988, 1008-09 (Pa. 2019) (rejecting

argument that death sentence for 20-year-old was unconstitutional under

Miller and Roper v. Simmons, 543 U.S. 551 (2005)). Because Appellant

was 19 when he killed the victim, he is not entitled to relief under Miller or

any other decision of the United States or Pennsylvania Supreme Court and

cannot satisfy Section 9545(b)(1)(iii)’s timeliness exception.

      Rather, Appellant’s claim is that Miller must be extended to 19-year-

old defendants based on its rationale and because failure to extend the

decision would violate the Equal Protection Clause. Such arguments that a

decision of the United States or Pennsylvania Supreme Court must be

extended to an additional group of defendants, however, do not satisfy the

requirements of Section 9545(b)(1)(iii) of the PCRA. Lee, 206 A.3d at 7-11;

Commonwealth v. Montgomery, 181 A.3d 359, 366-67 (Pa. Super. 2018)

(en banc); Furgess, 149 A.3d at 94.        This Court has repeatedly held that

claims indistinguishable from those asserted in Appellant’s PCRA petition do

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not satisfy any exceptions to PCRA’s one-year time limit. See, e.g., Lee, 206

A.3d at 7-11 (18-year-old defendant’s PCRA petition based on Miller and its

rationale dismissed as untimely); Pew, 189 A.3d at 490-91 (18-year-old

defendant’s   PCRA petition    based    on Miller   dismissed as untimely);

Commonwealth v. Montgomery, 181 A.3d at 366-67 (22-year-old

defendant’s PCRA petition based on Miller and Equal Protection Clause

dismissed as untimely); Woods, 179 A.3d at 43-44 (18-year-old defendant’s

claim under Miller dismissed as untimely); Furgess, 149 A.3d at 94 (19-

year-old defendant’s PCRA petition based on Miller and claim that “he was a

‘technical juvenile’” based on “neuroscientific theories regarding immature

brain development” dismissed as untimely).

      To the extent that Appellant has also asserted that his PCRA petition is

timely under the Section 9545(b)(1)(ii) for petitions based on newly

discovered facts, see PCRA Petition at 1 ¶2; Appellant’s Brief at 7, this

argument likewise fails. The issue raised that Appellant raised in the PCRA

petition was a claim that his sentence is unconstitutional based the United

States Supreme Court’s Miller decision. Judicial decisions do not constitute

new facts for purposes of Section 9545(b)(1)(ii). Commonwealth v. Watts,

23 A.3d 980, 986-87 (Pa. 2011); Commonwealth v. Kretchmar, 189 A.3d

459, 467 (Pa. Super. 2018). The only potentially applicable exception to the

PCRA’s time limits is thus the exception for newly recognized constitutional

rights, Section 9545(b)(1)(iii), which he cannot satisfy, and the exception for

newly discovered facts has no applicability to this PCRA petition.

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       Moreover, even if Section 9545(b)(1)(ii) were relevant, the PCRA

petition would still be untimely because the alleged facts are not new. In

addition to satisfying the requirements of an exception under Sections

9545(b)(1)(i)-(iii), the convicted defendant must show that he filed the PCRA

petition within the time limit for these exceptions set by Section 9545(b)(2)

of the PCRA. Lee, 206 A.3d at 6; Commonwealth v. Sanchez, 204 A.3d

524, 526-27 (Pa. Super. 2019). At the time that Appellant filed this PCRA

petition in February 2016, Section 9545(b)(2) required that a PCRA petition

invoking an exception “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2) (in effect January 16, 1996 to

December 23, 2018).4

       The only alleged facts asserted by Appellant are scientific studies

concerning brain development on which Miller, Montgomery v. Louisiana,

Graham v. Florida, 560 U.S. 48 (2010), and Roper, were based. Appellant’s

Brief at 7-9. Those scientific studies were in existence and referenced in the

Miller, Graham, and Roper decisions issued in 2012, 2010, and 2005, years

before Appellant filed this PCRA Petition in 2016.5     Appellant’s attempted
____________________________________________


4  While Appellant’s PCRA petition was pending, Section 9545(b)(2) was
amended to provide that “[a]ny petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894,
No. 146, § 2. This amendment has no applicability here, as it applies only to
claims arising on or after December 24, 2017, Act of October 24, 2018, P.L.
894, No. 146, §§ 3, 4, over a year after this PCRA petition was filed.
5Although Montgomery v. Louisiana was issued less than 60 days before
Appellant’s PCRA Petition, it does not cite any scientific studies.

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invocation of the exception for newly discovered facts would therefore be

barred by Section 9545(b)(2) of the PCRA.

      Because Appellant’s PCRA petition was untimely, we affirm the PCRA

court’s order dismissing Appellant’s PCRA petition.

      Order affirmed.



      Judge Ott joins in the memorandum.

      Judge Dubow concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/19




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