J-A21026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

CORDELL DUANE BROADUS,

                         Appellant                No. 1546 WDA 2016


               Appeal from the PCRA Order September 22, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011023-2001


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 18, 2017

      Appellant, Cordell Duane Broadus, appeals pro se from the order

entered on September 22, 2016, dismissing as untimely his fourth petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   A jury convicted Appellant of first-degree murder for shooting a

man in the Lincoln-Lemmington area of the City of Pittsburgh in 2001.

Appellant was almost 20 years old at the time of the shooting. On May 1,

2002, the trial court sentenced Appellant to life imprisonment. We affirmed

Appellant’s judgment of sentence on January 20, 2004 and our Supreme

Court denied further review. See Commonwealth v. Broadus, 847 A.2d

755 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 872
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A.2d 171 (Pa. 2005).    In July 2006, Appellant filed a timely pro se PCRA

petition.   The PCRA court appointed counsel who filed an amended PCRA

petition.   The PCRA court ultimately denied relief without an evidentiary

hearing.     On December 16, 2009, we affirmed that decision and our

Supreme Court denied further review. See Commonwealth v. Broadus,

990 A.2d 37 (Pa. Super. 2009), appeal denied, 996 A.2d 1067 (Pa. 2010),

certiorari denied, 562 U.S. 1068 (2010). In December 2010, Appellant filed

a second pro se PCRA petition.    The PCRA court dismissed the petition as

untimely, we affirmed that decision, and our Supreme Court denied further

review. See Commonwealth v. Broadus, 60 A.3d 578 (Pa. Super. 2012),

appeal denied, 63 A.3d 1243 (Pa. 2013).      Appellant filed his third pro se

PCRA petition in August 2012. The PCRA court dismissed the petition, we

affirmed, and Appellant did not seek further review. See Commonwealth

v. Broadus, 2013 WL 11255484 (Pa. Super. 2013).

      Most recently, Appellant filed his fourth pro se PCRA petition on

February 16, 2016 and an amended PCRA petition on February 24, 2016.

The   PCRA    court appointed   counsel,   who   subsequently   petitioned   to

withdraw. On June 28, 2016, the PCRA court granted counsel permission to

withdraw. By order entered on September 22, 2016, the PCRA court

dismissed Appellant’s fourth, amended PCRA petition as untimely and not




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subject to an exception to the PCRA’s one-year jurisdictional time-bar. This

appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

       Was Appellant denied his rights under the Eighth Amendment to
       the United States Constitution and Article I, Section 26 of the
       Pennsylvania Constitution, where Appellant seeks vacation of the
       life sentence and imposition of a new constitutional sentence
       based on the United States Supreme Court’s recent decision in
       Montgomery v. Louisiana, 136 S. Ct. 718 (2016) [and Miller
       v. Alabama, 132 S. Ct. 2455 (2012)2]?

Appellant’s Brief at 4.

       Before we may consider the merits of Appellant’s claim, we must

determine whether there is jurisdiction to consider the PCRA petition. “The

timeliness of a post-conviction petition is jurisdictional.” Commonwealth v.

Furgess, 149 A.3d 90, 92 (Pa. Super. 2016) (citation omitted). Generally,

____________________________________________


1
  Appellant filed a notice of appeal on October 7, 2016. On October 19,
2016, the PCRA court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 27, 2017.
2
    “In Miller, the Supreme Court held that 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. Knox, 50 A.3d 732, 744 (Pa. Super. 2012). “Because
Pennsylvania's sentencing scheme mandates life imprisonment without the
possibility of parole for juveniles convicted of second-degree murder, it is
clearly unconstitutional under Miller.”      Id.   The Montgomery Court
subsequently determined that Miller retroactively applied to cases on
collateral review. See Commonwealth v. Secreti, 134 A.3d 77, 81 (Pa.
Super. 2016).



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a petition for relief under the PCRA, including a second or subsequent

petition, must be filed within one year of the date the judgment became final

unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b)(1) of the PCRA.           Id.    Here, Appellant’s judgment of sentence

became final in 2005, after our Supreme Court denied review and the period

to petition the United States Supreme Court subsequently expired. See 42

Pa.C.S.A. §9545(b)(3); U.S. Supreme Court Rule 13.           Appellant’s current

PCRA petition filed in February 2016, is patently untimely.

       Without reference or argument to the PCRA’s timeliness requirements,

Appellant contends he is entitled to review because of a new constitutional

right3 recognized in Miller/Montgomery. Appellant’s Brief at 8. The PCRA

court determined that Miller/Montgomery did not apply to Appellant,

because “a careful examination of the record reveal[ed] that [Appellant’s]

date of birth is August 9, 1981 and he was 19 years and 10 months old at

the time of the offense on June 25, 2001.” PCRA Court Opinion, 4/27/2017,

at 4. In his appellate brief, Appellant concedes he was over the age of 18 at

the time of the crime.       See Appellant’s Brief at 9. However, he contends

that the Miller/Montgomery line of cases “should be applied to him and



____________________________________________


3
    See 42 Pa.C.S.A. § 9543(b)(1)(iii).



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other[s] similarly situated […] who are psychosocially immature” and under

the age of 25. Id. at 14.

     We have previously rejected this precise claim in our decision in

Furgess:

     The Miller decision applies to only those defendants who were
     under the age of 18 at the time of their crimes.

                         *            *            *
     [Furgess] argues that he nevertheless may invoke Miller
     because he was a “technical juvenile,” and he relies on
     neuroscientific theories regarding immature brain development
     to support his claim that he is eligible for relief. But, rather than
     presenting an argument that is within the scope of the Miller
     decision, this argument by [Furgess] seeks an extension of
     Miller to persons convicted of murder who were older at the
     time of their crimes than the class of defendants subject to the
     Miller holding.

     We rejected reliance on this same argument for purposes of
     Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
     759 (Pa. Super. 2013). The defendants in Cintora were 19 and
     21 years old at the times of their crimes, but they argued that
     Miller should apply to them and others whose brains were not
     fully developed at the time of their crimes. We stated that a
     contention that a newly-recognized constitutional right should
     be extended to others does not render a petition seeking such an
     expansion of the right timely pursuant to section 9545(b)(1)(iii).

     We also pointed out in Cintora that the right recognized in
     Miller had not been held to apply retroactively at the time of
     that decision and that its non-retroactivity would have been an
     alternative basis for denial of relief. 69 A.3d at 764 n. 4. Because
     the U.S. Supreme Court in Montgomery has since held that
     Miller does apply retroactively, this second reason stated in the
     Cintora opinion is no longer good law. However, nothing in
     Montgomery undermines Cintora's holding that petitioners
     who were older than 18 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). Accordingly, Cintora

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      remains controlling on this issue, and [Furgess’] assertion of the
      time-bar exception at Section 9545(B)(1)(iii) must be rejected.

Furgess, 149 A.3d at 94 (Pa. Super. 2016) (citations, original brackets, and

most quotations omitted; emphasis in original).

      Based upon all of the foregoing, the PCRA court properly dismissed

Appellant’s PCRA petition for lack of jurisdiction, not subject to an exception

under the PCRA.     Accordingly, we affirm the PCRA court’s order denying

Appellant relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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