J-S60031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROGER JIUNNMING WOO                        :
                                               :
                      Appellant                :   No. 214 WDA 2017

                 Appeal from the PCRA Order January 17, 2017
            In the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0003290-1994


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 12, 2017

       Appellant Roger Jiunnming Woo appeals pro se from the Order entered

in the Court of Common Pleas of Westmoreland County on January 17,

2017, dismissing his “Habeas Corpus Application” as an untimely petition

filed pursuant to the Post Conviction Relief Act (PCRA). 1      We find that the

PCRA court properly treated the petition as a petition under the PCRA.2 We

____________________________________________


1
  42 Pa.C.S.A. §§ 9541-9546.
2
  Appellant challenges the legality of his sentence under the Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution. A claim
challenging the legality of one’s sentence is cognizable under the PCRA. See
Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57, 60 (2007) (finding
legality of sentence is always subject to review within the PCRA, as long as
the claim satisfies the Act’s time limitations). “The [PCRA] is the sole means
of obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose. . . including habeas corpus . . . .”
42 Pa.C.S.A. § 9542 see also Commonwealth v. Descardes, ___ Pa.
____, ____, 136 A.3d 493, 499 (2016). Thus, the PCRA court correctly
(Footnote Continued Next Page)


____________________________________
*    Former Justice specially assigned to the Superior Court.
J-S60031-17



further conclude the claims Appellant raises have been previously litigated,

are   waived    or     are   untimely     and    without   an    applicable   exception.

Accordingly, we affirm.

      Following his conviction of first-degree murder in connection with the

shooting death of his paramour, Appellant was sentenced to a term of life

imprisonment without parole on March 27, 1996.3                 This Court affirmed his

judgment of sentence on April 22, 1997, and denied his application for

reargument on July 2, 1997. On August 1, 1997, Appellant filed a petition

for allowance of appeal with the Supreme Court of Pennsylvania which

denied his petition on December 31, 1997.                   Appellant’s petition for

discretionary review with the United States Supreme Court was denied on

May 18, 1998.        Thereafter, Appellant filed numerous petitions pursuant to

the PCRA, all of which were denied.

      On March 7, 2016, Appellant filed the instant, pro se petition for

habeas corpus relief which the trial court treated as his fourth PCRA petition.

On December 19, 2016, the PCRA court issued notice of its intent to dismiss

the petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907(A).

Appellant did not file a response, and on December 19, 2016, the PCRA




                       _______________________
(Footnote Continued)

treated Appellant’s filing as a PCRA petition rather than as a petition for a
writ of habeas corpus.
3
  18 Pa.C.S.A. § 2501(a).



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court dismissed the petition. Appellant filed a timely, pro se notice of appeal

on January 31, 2017.

       In his concise statement filed pursuant to Pa.R.A.P. 1925, Appellant

presented the following, single issue:

       1. The instant Post Conviction Relief Act Court (PCRA Court) has
       jurisdiction to entertain the merits of Appellant's instant PCRA
       Petition pursuant to the 14th. Amendment to the U.S.
       Constitution and Montgomery v. Louisiana, 136 S.Ct. 718 (2016)
       and this Court's decision is not free of legal error.

See “Petitioner’s Concise Statement of Errors Complained of on Appeal

Pursuant to Pa.R.A.P. 1925(b), filed 2/13/17.

       However, in his appellate brief Appellant presents five issues for this

Court’s review:4


       (1)    Did the Honorable Judge violate the Appellant’s 6th, 8th,
              and 14th Amendment Rights by not holding a hearing on
              the merits of Appellant’s Writ of Habeas Corpus?
       (2)    Did the Honorable Judge show prejudice to Appellant by
              not holding a hearing on the merits of his Writ of Habeas
              Corpus under the holdings of Montgomery v. Louisiana
              and Miller v. Alabama as read in a whole?
       (3)    Did the Honorable Judge violate Appellant’s right to fair
              trial by denying this Appellant the right to present a
              Diminished Capacity Defense?
       (4)    Was the Appellant shown prejudice by the Honorable Judge
              to not hold a hearing on the Writ of Habeas Corpus and the
              Ineffective Assistance of Counsel, and treating it as a
              successive PCRA, in violation of 6th, 8th & 14th Amendments
              to the US Const. and Pa.Const. Art.1 § 14?
____________________________________________


4
  Appellant includes these issues in the “Summary of Argument” portion of
his brief, which lacks a statement of questions involved section in violation of
Pa.R.A.P. 2116(a).



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       (5)    Did the Honorable Judge show prejudice to this Appellant
              by stating 42 Pa.C.S.A. § 9545 did not apply to this
              Appellant?

Brief for Appellant at 4. (boldface type in original).

       At the outset, we note that while Appellant argues numerous points in

his appellate brief, in his Rule 1925(b) statement he presented a challenge

only to the legality of his sentence in light of the decision of the United

States Supreme Court in Montgomery v. Louisiana, ___ U.S. ____, 136

S.Ct. 718, 193 L.Ed.2d 599 (2016). As such, he has waived the additional

claims he presents in his appellate brief.         See Pa.R.A.P. 1925(b)(4) (vii);

see also Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009),

appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for

appellate review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to

[Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be

deemed waived.” (citations omitted)).            Therefore, we address Appellant’s

properly preserved claim.5

____________________________________________


5
  Even if Appellant properly had preserved the third and fourth issues he
presents in his appellate brief, we note that he cannot demonstrate these
allegations of error have not been previously litigated, for PCRA relief is not
available for alleged errors raised in a PCRA petition that have been
previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue has been
previously litigated if “the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on the merits of the
issue[.]” 42 Pa.C.S.A. § 9544(a)(2); see also, Commonwealth v.
Hanible, 612 Pa. 183, 205, 30 A.3d 426, 438–39 (2011). In his first,
(Footnote Continued Next Page)


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         When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record

supports the PCRA court’s conclusions and whether its ruling is free of legal

error.     Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).      This Court will not disturb the PCRA court’s findings unless

there is no support for them in the certified record.      Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

         At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

         All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden to plead and prove an applicable statutory

exception.     If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing
                       _______________________
(Footnote Continued)

timely-filed PCRA petition, Appellant alleged that trial counsel had been
ineffective for having failed to pursue the defenses of diminished capacity
and involuntary intoxication, and this Court found no merit to these claims.




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J-S60031-17


because Pennsylvania courts are without jurisdiction to consider the merits

of the petition. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

     42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

     (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 of sentence 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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   In addition, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

     As noted previously, Appellant was sentenced on March 27, 1996, and

this Court affirmed the judgment of sentence on April 22, 1997. The

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on December 31, 1997, and the United States Supreme Court denied

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J-S60031-17


him discretionary review on May 18, 1998; therefore Appellant’s judgment of

sentence became final on that date. See 42 Pa.C.S.A. § 9545(b)(3) (stating,

“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[ ]”). 6 Since Appellant filed the instant petition almost eighteen years

thereafter, it is patently untimely and the burden fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time-bar

is applicable. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin,

947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke a statutory exception to

the PCRA time-bar, a petitioner must properly plead and prove all required

elements of the exception). In addition, an Appellant must comply with 42

Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented”).

       Appellant attempts to evoke the newly-recognized constitutional right

exception when averring his sentence of life imprisonment is illegal under

____________________________________________


6
  The 1996 amendments to the Post Conviction Relief Act providing for an
additional one-year grace period in which to file a PCRA petition do not
benefit Appellant herein.




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J-S60031-17


Montgomery, supra. In Montgomery, the United States Supreme Court

declared its prior holding in Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455,    183   L.Ed.2d   407   (2012)   constitutes   a   substantive   rule   of

constitutional law to which state collateral review courts were required as a

constitutional matter to give retroactive effect. Montgomery v. Louisiana,

___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ___.          The Supreme

Court held therein that the new rule of law announced in Miller applies

retroactively to cases on collateral review.

        The United States Supreme Court decided Montgomery on January

25, 2016, and Appellant filed the current PCRA petition on March 7, 2016.

In Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this

Court held that the date upon which Montgomery had been decided is to be

used when calculating whether a petition is timely filed under the sixty-day

rule of 42 Pa.C.S.A. § 9545(b)(2). Because Appellant’s PCRA petition was

filed prior to March 25, 2016, he has satisfied the PCRA time-bar. See 42

Pa.C.S.A. § 9545(b)(2). Notwithstanding, Miller does not apply to his case.

        In Miller, the Supreme Court had held that “mandatory life without

parole for those under the age of 18 at the time of their crimes violated the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”

Miller v. Alabama, ___ U.S. at ____, 132 S.Ct. at 2460, 183 L.Ed.2d at

____.    However, while the Supreme Court’s holding in Miller set forth a

bright-line rule that mandatory sentences of life imprisonment without the


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possibility of parole are unconstitutional for juvenile offenders, it did not

prevent a trial court from imposing a life sentence upon an individual such

as Appellant who was over the age of eighteen at the time he committed the

murder.7       Therefore, the right recognized by Miller and held to be

retroactive in Montgomery does not provide Appellant a basis for relief

from the PCRA time-bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469,

___ L.Ed.2d at ____ (holding “the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

offenders.”)     See also Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa.Super. 2013) (holding Miller is not an exception under Section

9545(b)(1)(iii) to those over the age of eighteen at the time crimes were

committed); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super.

2016) (holding the Miller decision applies only to defendants “under the age

of 18 at the time of their crimes”).

       For the foregoing reasons, Appellant's serial PCRA petition is untimely,

and he has failed to plead and prove an exception to the statutory time-bar.

The PCRA court correctly determined it lacked jurisdiction to review the

merits of Appellant's petition and properly dismissed it, and we discern no

other basis on which to disturb the PCRA court's dismissal of Appellant's

petition as untimely.
____________________________________________


7
  Appellant’s date of birth is April 20, 1968, and the murder occurred on
September 18, 1994.



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J-S60031-17


     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2017




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