J-S57039-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                  Appellee                   :
          v.                                 :
                                             :
EDWARD MCDEVITT,                             :
                                             :
                  Appellant                  :   No. 2769 EDA 2017

                   Appeal from the PCRA Order August 14, 2017
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0219991-1983

BEFORE:        PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED DECEMBER 04, 2018

      Edward McDevitt (Appellant) appeals pro se from the August 14, 2017

order dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      When he was 19 years old, Appellant beat Lawrence Kelly to death.

Following a jury trial, Appellant was convicted of first-degree murder.        In

1984, Appellant was sentenced to a mandatory term of life imprisonment

without parole. This Court affirmed his judgment of sentence in 1985, and

our Supreme Court denied his petition for allocatur on January 29, 1987.

Commonwealth          v.   McDevitt,   505   A.2d    1034   (Pa.   Super.   1985)

(unpublished memorandum), appeal denied, 522 A.2d 558 (Pa. 1987).

Appellant did not seek certiorari in the United States Supreme Court.

      In the years following his conviction, Appellant filed a multitude of

petitions pursuant to the PCRA and its predecessor, but none merited relief.

*Retired Senior Judge assigned to the Superior Court.
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On March 17, 2016, Appellant pro se filed the PCRA petition that is the

subject of this appeal. On June 30, 2017, the PCRA court issued notice of its

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907.   Appellant filed a response, but on August 14, 2017, the PCRA court

dismissed the petition as untimely filed.      Appellant pro se timely filed a

notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       Our first task is to determine whether Appellant’s PCRA petition was

timely filed, as the timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).

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

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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.         42 Pa.C.S.

§ 9545.    “[W]hen a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the [PCRA] court

has no power to address the substantive merits of a petitioner’s PCRA

claims.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

       It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 1987. However, Appellant alleges that his petition,



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filed within 60 days of the United States Supreme Court’s decision in

Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), meets the

following timeliness exception: “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)(iii); see Appellant’s Brief at 8-15.

      In 2012, the Supreme Court of the United States 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.’”      Miller v. Alabama, 567 U.S. 460, 465 (2012) (emphasis

added).    In Montgomery, the Court determined that Miller announced a

new substantive rule of law that applies retroactively.       Montgomery, 136

S.Ct. at 736.

      Appellant was not under the age of 18 when he murdered Kelly. This

Court has held that because Miller does not apply to a petitioner who was

18 or older at the time he committed murder, such petitioner cannot rely on

Miller    to    avail   himself   of   the   time-bar   exception   in   subsection

9545(b)(1)(iii).    See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (citing Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super.

2013)); see also Commonwealth v. Montgomery, 181 A.3d 359, 366

(Pa. Super. 2018) (en banc) (reaffirming the holding in Furgess that



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Montgomery v. Louisiana did not extend Miller’s holding to individuals

who committed homicides after they reached the age of 18).           Because

Appellant is not within the ambit of Miller, he did not meet his burden of

establishing an exception to the PCRA’s time bar.1, 2

      Finally, we reject Appellant’s assertion that he was entitled to

appointment of counsel and an evidentiary hearing pursuant to Pa.R.Crim.P.

904(D) and 908.3 See Appellant’s Brief at 16-20. Because Appellant did not


1 This Court recently certified Commonwealth v. Lee, No. 1891 WDA 2016,
for en banc review regarding the application of the reasoning in Miller to
young adults. We decline Appellant’s request to hold his case pending the
outcome of Lee. Even if this Court en banc were to extend Miller’s
reasoning to young adults as Appellant hopes it will do, Appellant still would
be unable to meet the requirements of the newly-recognized and
retroactively-applicable constitutional right time-bar exception.       See 18
Pa.C.S. § 9545(b)(1)(iii) (requiring the Supreme Court of the United
States or the Supreme Court of Pennsylvania to recognize the new
constitutional right and hold that the right applies retroactively). If either
Supreme Court ever extends Miller to young adults and deems the new rule
to apply retroactively, Appellant may file another PCRA petition requesting
relief at that time consistent with subsections 9545(b)(1)(iii) and (b)(2).

2 Appellant’s attempt to invoke Miller in his argument that his sentence
violates the equal protection clause of the Fourteenth Amendment of the
United States Constitution also fails. See Appellant’s Brief at 12. Miller
only announced a new rule with respect to the Eighth Amendment, not the
Equal Protection Clause. Montgomery, 181 A.3d at 366. An argument that
a newly-recognized constitutional right should be extended does not render
a petition seeking an expansion of the right timely filed pursuant to
subsection 9545(b)(1)(iii). Id. at 366-67.

3 Generally, an evidentiary hearing is required if the PCRA petition or the
Commonwealth’s answer “raises material issues of fact.”       Pa.R.Crim.P.
908(A)(2). “On a second or subsequent petition, when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
(Footnote Continued Next Page)




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plead facts that would establish an exception to the PCRA’s timeliness

requirements, the PCRA court properly dismissed Appellant’s petition without

holding a hearing.          See Commonwealth v. Miller, 102 A.3d 988 (Pa.

Super. 2014) (affirming dismissal of PCRA petition without a hearing

because Miller failed to meet his burden of proving any exception to the

PCRA’s time bar).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/4/18




(Footnote Continued)   _______________________



otherwise procure counsel, and an evidentiary hearing is required as
provided in Rule 908, the judge shall appoint counsel to represent the
defendant.” Pa.R.Crim.P. 904(D).




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