J-S06015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
KEITH BREWINGTON                        :
                                        :
                  Appellant             :   No. 219 EDA 2017

                Appeal from the PCRA Order August 9, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0503022-1989


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 17, 2018

     Keith Brewington appeals from the order denying, as untimely, his

fourth PCRA petition. We affirm.

     We previously set forth the facts in our decision affirming judgment of

sentence on direct appeal:

     On the night of March 11, 1989, Appellant was instructed by
     Melvin Troy Williams (Williams), his “employer,” to call Melvin
     “Daddyo” Williams (the victim) at his home and inform him that
     Appellant would drive to his house and pick him up. Williams
     believed that the victim had helped a rival gang kill “Taboo”, who
     was a member of Williams’ gang. Evidence presented by the
     Commonwealth established that Appellant and Williams were
     allegedly involved in an illegal drug business where a hierarchy
     is in place and orders get handed down from the top. In
     accordance with this chain of command, Appellant asked
     Christopher Brown (Brown) to place the call. Appellant and
     Brown then picked up the victim and took him to a
     predetermined spot where Michael Black, Keith Washington, and
     Elliot Moore (the co-defendants) awaited his arrival. At this
     spot, the victim was killed in the front seat of the car by the co-
     defendants’ shower of gunfire.
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Commonwealth v. Brewington, 740 A.2d 247, 250–51 (Pa.Super. 1999)

(citations to transcript omitted), appeal denied, 758 A.2d 660 (Pa. 2000).1

Appellant was eighteen when he committed these crimes.

        Appellant thereafter filed a timely pro se PCRA petition.         Appointed

counsel filed an amended petition, which the PCRA court ultimately

dismissed without a hearing, and we affirmed.                  Commonwealth v.

Brewington, 852 A.2d 1244 (Pa.Super. 2004). His second and third PCRA

petitions were both untimely, and we affirmed the dismissals of both on

appeal. Commonwealth v. Brewington, 907 A.2d 1129 (Pa.Super. 2006)

(second     petition);   Commonwealth            v.   Brewington,   953   A.2d   594

(Pa.Super. 2008) (third petition).

        This litigation concerns Appellant’s fourth attempt to secure PCRA

relief. We note that it is unclear exactly how many petitions are at issue in

this appeal.     Following our denial of Appellant’s third PCRA petition, the

docket reflects that a motion was filed on October 6, 2011, with a notation

stating “[Appellant]’s Motion for ‘Fraud’ treated as a petition for post-

conviction relief.” That document is not contained in the certified record.

        The next entry in the docket is August 10, 2012, which is in the

certified record and is a pro se PCRA petition seeking to raise Miller v.

Alabama, 567 U.S. 460 (2012), decided June 15, 2012.                Miller held that
____________________________________________


1
    Appellant was convicted of first-degree murder and criminal conspiracy.



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imposing a mandatory sentence of life imprisonment without the possibility

of parole for offenders who were under eighteen at the time of their crimes

violates the United States Constitution.         Appellant recognized that the

petition was untimely, but asserted that Miller qualified as an exception to

the PCRA’s one-year time bar, and noted that his petition was filed within

sixty days of Miller. See 42 Pa.C.S. § 9545(b)(2) (any petition invoking an

exception must be filed within sixty days of date it could have been

presented). No immediate action was taken on this petition.

       On March 23, 2016, Appellant filed another pro se PCRA petition, also

seeking to raise Miller.        Appellant noted that, on January 25, 2016, the

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

718 (2016), which held that States were required to grant retroactive effect

to Miller. Thus, this petition was also filed within sixty days as required.

       The PCRA court issued a notice of intent to dismiss, which stated that

“Your petition, filed on May 9, 2011 was . . . untimely[.]” Notice, 6/1/16.2

Appellant filed a response in which he asserted, “[Appellant] can show and

prove that [f]raud was perpetrated . . . in order to get a [t]ainted

[c]onviction[.]”     Response, 8/9/16, at 2.     The PCRA court dismissed the

petition the same day it received the response.

____________________________________________


2
  The PCRA court opinion states, “On October 6, 2011, Petitioner filed the
instant pro se PCRA petition, his fourth.” Opinion, 1/5/17, at 2. The
October petition was, as previously noted, captioned as a “motion for fraud.”



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      Appellant filed a notice of appeal, docketed September 12, 2016,

which is four days after the expiration of the applicable thirty-day period.

The Commonwealth states that this appeal must be quashed. We decline to

do so. As our Supreme Court has stated:

      The pro se prisoner’s state of incarceration prohibits him from
      directly filing an appeal with the appellate court and prohibits
      any monitoring of the filing process. Therefore, we now hold that
      in the interest of fairness, a pro se prisoner’s appeal shall be
      deemed to be filed on the date that he delivers the appeal to
      prison authorities and/or places his notice of appeal in the
      institutional mailbox.

Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 281 (Pa.

1996).   Presently, the record indicates that the notice of appeal was

postmarked on September 12.         The notice of appeal contains a hand

notation by Appellant indicating that he initiated the procedure of having the

appeal delivered through the prison system on September 8, the day the

appeal was due. Due to the short discrepancy between the hand notation

and postmarking, we accept that Appellant delivered the document for filing

on September 7 and deem the notice of appeal as timely filed under the

prisoner mailbox rule.

      The PCRA court issued an opinion in lieu of requiring a Pa.R.A.P.

1925(b) statement. Appellant’s brief is difficult to read and is noncompliant

with the rules governing appellate briefs as, among other defects, it neglects

to include a statement of questions presented.        We have gleaned the

following issues, taken from his headings:


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      Did the [PCRA court] abuse his authority, discretion, violate his
      oath of office, the rules of professional conduct, code of ethics,
      thus violating [Appellant]’s United States, Federal, and
      Pennsylvania constitutional, and due process rights?

      Did [the PCRA court] improperly, and unreasonably dismiss, and
      deny [Appellant]’s [PCRA] appeal as untimely when there was no
      opposition from the Commonwealth, i.e. the district attorney,
      and the [PCRA] was clearly timely filed by Judge Tucker’s own
      admission?

      Did [the PCRA court] error in dismissing, and denying
      [Appellant]’s [PCRA] appeal based on inaccurate, and false
      information?

      Mandatory life without parole, terms for adults in non-homicide,
      and homicide cases violates state, and federal equal protection
      clauses, as well as article 7 of the universal declaration of human
      rights.

      Did [the PCRA court] [err] in not finding [Appellant] fit into a
      subclass of those defined as juvenile, thus entitling him to the
      same equal protection as his minor counterparts according to the
      Pennsylvania Constitution, and common law definitions
      mandating the same treatment?

Appellant’s brief.

      We apply the following principles. Our standard of review

              examines “whether the PCRA court’s determination is
      supported by the evidence of record and free of legal error. We
      grant great deference to the PCRA court’s findings, and we will
      not disturb those findings unless they are unsupported by the
      certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017
      (Pa.Super. 2017) (citation omitted). A PCRA petition must be
      filed within one year of the date the judgment of sentence
      becomes final. 42 Pa.C.S. § 9545(b)(1). “This time constraint is
      jurisdictional in nature, and is not subject to tolling or other
      equitable considerations.” Commonwealth v. Spotz, ––– Pa. –
      –––, 171 A.3d 675, 678 (2017) (citation omitted). The time bar
      can “only be overcome by satisfaction of one of the three
      statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–
      (iii).” Id. “Questions regarding the scope of the statutory

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      exceptions to the PCRA’s jurisdictional time-bar raise questions
      of   law;   accordingly,  our    standard    of   review   is de
      novo.” Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
      520, 522 n.1 (2006).

Commonwealth v. Robinson, 2018 WL 2041425, at *2 (Pa.Super. May 2,

2018) (en banc).

      As Appellant’s judgment of sentence became final long ago, he was

required to establish that an exception to the PCRA’s one-year time bar

applied. These exceptions are:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Additionally, we note that in Commonwealth v. Montgomery, 181

A.3d 359 (Pa.Super. 2018) (en banc), we held that PCRA courts are not

jurisdictionally barred from considering serial PCRA petitions, provided that

there is not a pending appeal of a PCRA petition.    Herein, the PCRA court

disposed of several PCRA petitions in one overarching order, which is

permitted by our en banc decision in Montgomery.          We discern three


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separate petitions: first, the motion for fraud; second, the Miller petition;

and third, the Montgomery v. Louisiana petition.

       Having set forth these points, we now address Appellant’s arguments.

Appellant’s brief is difficult to decipher, but his primary complaints are that

(1) the PCRA court acted improperly by denying his petition, since the

Commonwealth did not file a response, and (2) he is entitled to relief under

Miller/Montgomery.

       Appellant repeatedly argues that the PCRA court “improperly played

the role of the District Attorney [by] research[ing]” his PCRA petitions.

Appellant’s brief at 4.           However, Appellant fails   to recognize that

Pa.R.Crim.P. 906(A) explicitly states that “an answer to a petition for post-

conviction collateral relief is not required unless ordered by the judge.” The

PCRA court saw no need to order a response in light of well-settled law, and

Appellant’s assumption that the PCRA court is obliged to grant relief in the

absence of opposition by the Commonwealth is simply incorrect. Therefore,

all of his complaints regarding the PCRA court’s purported interference are

meritless.

       The remaining assertions all concern his Miller claim.3       Appellant

correctly notes that he filed for relief under both Miller and Montgomery


____________________________________________


3
  To the extent that the “motion for fraud” petition is at issue, Appellant has
failed to establish any exception to the PCRA’s one-year time bar. Indeed,
(Footnote Continued Next Page)


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by filing a PCRA petition within sixty days of their respective decisions.

However, the Miller holding, which must be given effect pursuant to

Montgomery, simply does not apply to him. Appellant insists that “minors

are no less entitled to special considerations than their juvenile (subclass)

counterparts, particularly where age is not a statutory factor.” Appellants

brief at 14. As we have repeatedly stated, this is simply an argument that

Miller’s holding should extend to persons who were over the age of

eighteen.     That claim does not satisfy the PCRA’s one-year time bar

limitation.

      Here, if Appellant’s petition actually presented a valid claim
      under Miller v. Alabama, Appellant would have met that 60-
      day deadline because Miller was decided on June 25, 2012, and
      Appellant filed his PCRA petition less than 60 days later, on
      August 8, 2012. See generally Commonwealth v. Secreti,
      134 A.3d 77, 82 (Pa.Super.2016). But even though he filed
      within 60 days of the Miller decision, Appellant’s petition did not
      satisfy the jurisdictional requirements of Section 9545 because
      the petition did not present a claim falling within the ambit of the
                       _______________________
(Footnote Continued)

he insists that his allegation was not subject to the PCRA and that he was
absolutely entitled to a hearing:

      Also Judge Tucker brings up the fact that a claim of "Fraud on
      the Court" was made/claimed which he improperly included in a
      P.C.R.A. when a claim of "Fraud on the Court" is deemed as an
      independent action and can be raised at any time, and not
      subject to the time-bar wherefore Judge Tucker had an
      obligation to hold a hearing to determine whether Fr[au]d was
      commit[t]ed on this Honorable Court, therefore [Appellant] is
      enti[t]led to relief in the form of a hearing to determine whether
      Fraud was in Fact committed.

Appellant’s brief at 3. This woefully undeveloped claim affords no relief.



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      Supreme Court’s decision in Miller and therefore does not fall
      under the “newly recognized constitutional right” exception in
      Section 9545(b)(1)(iii).

      The Miller decision applies to only those defendants who were
      “under the age of 18 at the time of their crimes.” 132 S.Ct. at
      2460. Both Appellant’s PCRA petition and his appellate brief
      acknowledge that Appellant “was 19 years old at the time of his
      offenses.” In this regard, the PCRA court noted that Appellant’s
      birth date is December 3, 1968, and the murder occurred on
      August 28, 1988, “making him nineteen years old on the date of
      the murder.” The PCRA court therefore concluded that
      Appellant’s “reliance on the Miller case for relief is misplaced”
      because Appellant, “[b]y his own admission, was nineteen years
      old when he committed the crime.” We agree.

      Appellant      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 Appellant 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.” Id. at 764. 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).” Id. (emphasis in
      original).

Commonwealth v. Furgess, 149 A.3d 90, 93–94 (Pa.Super. 2016) (some

citations omitted).




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     Accordingly, Appellant’s claim that he was a technical juvenile does not

satisfy the PCRA’s one-year time bar, as Miller does not apply to Appellant.

Therefore, the PCRA court correctly dismissed the petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2018




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