J-S53036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERNEST BENJAMIN                            :
                                               :
                       Appellant               :   No. 310 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-0332721-1993


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

JUDGMENT ORDER BY NICHOLS, J.:                        FILED OCTOBER 28, 2019

        Appellant Ernest Benjamin appeals pro se from the order dismissing his

third petition pursuant to the Post Conviction Relief Act1 (PCRA) as untimely.

Appellant contends that he has overcome the time-bar of the PCRA by

asserting a newly recognized constitutional right under Miller v. Alabama,

567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On March 31, 1993, following a non-jury trial, the trial court sentenced

Appellant to an aggregate term of life imprisonment for second-degree

murder, robbery, and related offenses. This Court affirmed the judgment of

sentence on July 31, 1995 and Appellant did not seek further review.

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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      Following an unsuccessful first PCRA, Appellant filed his second pro se

PCRA petition on May 15, 2012 asserting a Miller claim. After issuing proper

notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907

notice, the PCRA court denied relief.       This Court affirmed the denial of

Appellant’s second petition on June 8, 2016. Specifically, this Court held that

Miller did not apply in Appellant’s case because he was nineteen years of age

at the time of the offense. See Commonwealth v. Benjamin, 2615 EDA

2015 (Pa. Super. filed June 8, 2016) (unpublished mem.).

      While the appeal of his second petition was pending before this Court,

Appellant filed the instant pro se PCRA petition and a motion for leave amend

on March 21, 2016. The PCRA court treated the filings as Appellant’s third

PCRA petition.   Subsequently, the PCRA court issued Rule 907 notice and

dismissed the instant petition on January 2, 2019. This appeal follows.

      Preliminarily, we observe that “when an appellant’s PCRA appeal is

pending before a court, a subsequent PCRA petition cannot be filed until the

resolution of review of the pending PCRA petition by the highest state court in

which review is sought, or upon the expiration of the time for seeking such

review.” Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Here,

Appellant prematurely filed the current PCRA petition because his appeal of

the order dismissing his second petition was still pending before this court.

Therefore, the PCRA court should not have considered the instant petition.

See Lark, 746 A.2d at 588.




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      Moreover, even if Appellant’s petition was properly before this Court, no

relief is due. Appellant argues that, although he was nineteen at the time of

the   offense,   the   constitutional   protection against cruel and unusual

punishment articulated in Miller should be extended to his case because of

his diminished mental capacity. However, this Court has already determined

Miller is inapplicable where the defendant is over the age of eighteen. See

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

(concluding that age is the sole factor in determining whether Miller applies

to overcome the PCRA time-bar). Therefore, Appellant’s PCRA petition was

time-barred and he did not satisfy the newly recognized constitutional right

exception. See id. Accordingly, we affirm the order denying PCRA relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/19




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