J-S15004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

SHAWN SAUNDERS

                            Appellant                No. 3132 EDA 2016


                 Appeal from the PCRA Order August 15, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001537-2000


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 24, 2017

       Shawn Saunders appeals from the August 15, 2016 order denying a

petition seeking PCRA relief.1 We affirm.

       Based upon the following events, a jury convicted Appellant of second

degree murder, robbery, conspiracy, and possession of a unlicensed firearm.

On October 18, 1999, Appellant, Omar Davis, and David Burroughs traveled

together to Ninth and Lincoln Streets in Chester so that Davis could

purchase marijuana.         On the way, Appellant, who was armed with a gun,

____________________________________________


1
   In the August 15, 2016 order, the court denied a separate habeas corpus
petition that Appellant had filed. The appeal from the denial of that petition
is also pending before this panel. Although the appeals are from the same
order, that order disposed of separate requested for post-conviction relief.
Accordingly, we have not consolidated them for review.
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informed his cohorts that he intended to rob the individual who was going to

sell Davis the controlled substance. When they arrived at their destination,

Appellant put on a ski cap and covered his face.        Appellant, Davis, and

Burroughs encountered Cleven Pender and Shammer Thomas. Davis rifled

through Thomas’ pockets, and Appellant told Pender to give him money.

When Pender started to back away, Appellant shot Pender in the chest,

killing him. Appellant was twenty-two years old when he murdered Pender.

     Appellant was convicted on March 9, 2001, and, on April 9, 2001, he

was sentenced to life imprisonment.       On August 27, 2002, we affirmed,

Commonwealth          v.   Saunders,     809   A.2d   964   (Pa.Super.   2002)

(unpublished memorandum), and our Supreme Court denied allowance of

appeal on December 2, 2003. Commonwealth v. Saunders, 839 A.2d 352

(Pa. 2003). No further review was sought.

     Appellant filed a timely PCRA petition on February 7, 2005, and

counsel was appointed.      Counsel was allowed to withdraw and relief was

denied.     Appellant did not appeal.   On August 14, 2009, Appellant filed a

second PCRA petition, which was dismissed as untimely.         On appeal, we

affirmed.    Commonwealth v. Saunders, 15 A.3d 538 (Pa.Super. 2010)

(unpublished memorandum).

     Appellant filed a third PCRA petition on March 15, 2012, claiming that

he was entitled to relief under Miller v. Alabama, 132 S.Ct. 2455 (2012),

wherein the United States Supreme Court held that it was unconstitutional,

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under the Eighth Amendment’s prohibition against cruel and unusual

punishment, to sentence a juvenile homicide offender to a mandatory term

of life imprisonment without parole.    Relief was denied, and we affirmed.

Commonwealth        v.   Saunders,     102   A.3d   519   (Pa.Super.   2014)

(unpublished memorandum). In this third Saunders decision, we concluded

that Appellant’s judgment of sentence became final on March 1, 2004, ninety

days after our Supreme Court denied review, and that Appellant had until

March 1, 2005 to present a timely PCRA petition.          We observed that

Appellant’s petition was not timely. We also held that the Miller decision did

not apply to him because he was an adult when he committed the murder in

question. See Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013)

(Miller does not apply to homicide offenders who are eighteen years of age

or older when they committed the murder).

    Next, Appellant filed a motion arguing that the court had no authority to

impose its sentence and seeking facts regarding its decision.     The motion

was treated as a fourth PCRA petition and denied as untimely.       We once

again affirmed the denial of relief, agreeing that the motion was an untimely

PCRA petition. Commonwealth v. Saunders, 122 A.3d 1126 (Pa.Super.

2015) (unpublished memorandum).

     On April 11, 2016, Appellant filed the present PCRA petition, his fifth

one. He once again invoked the Miller decision, which had been accorded

retroactivity on January 27, 2016 in Montgomery v. Louisiana, 136 S.Ct.

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718 (2016).      On August 15, 2016, an order was issued denying the fifth

petition.   The Court held that Appellant was not entitled to relief under

Miller because he was an adult when he committed the murder and because

the matter was already litigated in Appellant’s fourth PCRA petition.     This

appeal followed. Appellant raises this argument as to the denial of his fifth

PCRA petition:

            1. Whether the PCRA Court erred in denying Appellant's
      Post -Conviction Relief Delineated in 42 Pa.C.S. § 9545(b)(iii) &
      (2)?

                   II. Whether the PCRA Court erred in denying
             Appellant's asserted Constitutional right guaranteed
             by the United States Constitutional 8th & 14th
             Amendments in conjunction with Pennsylvania
             Constitution Art. 1 § 13, and the United Nations'
             Universal Declaration of Human Rights Art. 7;
             whereas, Appellant has a Right to Be free from cruel
             and unusual punishment, Due Process of law, and
             equal protection of the laws?

Appellant’s brief at 4.

      Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)).     Appellant once against seeks relief under Miller, suggesting

that when he committed the crime, he lacked the mental development and

maturity that the Miller decision relied upon in its ruling that juvenile




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homicide offenders cannot automatically be sentenced to life imprisonment

without parole.

      Our case law currently holds that Miller is inapplicable to anyone

eighteen years of age or older, and we have rejected the same arguments

now presented by Appellant. Cintora, supra. Moreover, a PCRA petitioner

cannot obtain relief based upon an issue that has been previously litigated.

42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this subchapter, the

petitioner must plead and prove by a preponderance of the evidence all of

the following . . . . [t]hat the allegation of error has not been previously

litigated[.]”).   The PCRA also provides that “an issue has been previously

litigated if . . . . it has been raised and decided in a proceeding collaterally

attacking the conviction or sentence.”     42 Pa.C.S. § 9544(a)(3).      In the

previous proceeding collaterally attacking this conviction, we held that Miller

did not apply to Appellant since he was over eighteen when he shot Pender.

Thus, Appellant’s entitlement to relief under that decision has been

previously litigated, and he is not eligible for relief on its basis. The PCRA

court did not abuse its discretion, and we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017




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