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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
JERRY WOODWARD,                           :         No. 1655 EDA 2017
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, May 1, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0420522-1984


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 27, 2018

        Jerry Woodward appeals pro se from the May 1, 2017 order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we affirm.1

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows.   Following a bench trial, appellant was

found guilty of first-degree murder and related offenses in connection with the

March 1984 stabbing death of James Himmons. On November 20, 1984, the

trial court sentenced appellant to an aggregate term of life imprisonment.

Appellant, who was born in April 1963, was 20 years old at the time of this

offense.    On August 23, 1985, a panel of this court affirmed appellant’s




1   The Commonwealth has not filed a brief in this matter.
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judgment of sentence, and our supreme court denied allowance of appeal on

March 6, 1986.      Commonwealth v. Woodward, 503 A.2d 53 (Pa.Super.

1985) (unpublished memorandum).2          Appellant filed a pro se petition for

post-conviction relief under the Post Conviction Hearing Act (“PCHA”),

42 Pa.C.S.A. § 9541 et seq.,3 and counsel was appointed to represent him.

The PCHA court ultimately dismissed appellant’s petition on September 21,

1989.

        Appellant filed the instant pro se petition, his second, on August 13,

2012. On March 15, 2017, the PCRA court provided appellant with notice of

its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1). On March 29, 2017, appellant filed a response to the

PCRA court’s Rule 907 notice, arguing, inter alia, that he was entitled to

habeas corpus relief. (See Rule 907 response, 3/29/17 at 6, ¶ 18.) On

May 1, 2017, the PCRA court filed an order and opinion dismissing appellant’s

petition as untimely. This timely appeal followed on May 12, 2017.4

        Appellant raises the following issue for our review: “Whether [a]ppellant

is entitled to Post Conviction Relief based on newly discovered mitigating




2Our review indicates there is no additional citation for the March 6, 1986
denial of appellant’s petition for allowance of appeal on Westlaw or Lexis.

3 The PCHA was modified in part, repealed in part, and renamed the PCRA
through amendments effective April 13, 1988.

4The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b).


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evidence regarding brain science and social science study?” (Appellant’s brief

at 3.)

         Preliminarily, we must first consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted).     It is well settled that all PCRA petitions, including second and

subsequent petitions, must be filed within one year of when a defendant’s

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). Here,

appellant’s judgment of sentence became final on June 4, 1986, 90 days after

the Supreme Court of Pennsylvania denied allowance of appeal and the

deadline for filing a petition for writ of certiorari in the Supreme Court of the

United States expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “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[]”).

Accordingly, appellant’s instant petition, which was filed more than 26 years

after his judgment of sentence became final, is patently untimely. As a result,

the PCRA court lacked jurisdiction to review appellant’s petition, unless

appellant alleged and proved one of the statutory exceptions to the time-bar,

as set forth in Section 9545(b)(1).

         To invoke an exception under Section 9545(b)(1), a petitioner must

allege and prove:



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              (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).

         Instantly, the record reveals that appellant failed to prove any of the

statutory exceptions to the PCRA time-bar.           Appellant contends that the

Supreme Court of the United States’ decisions in Miller v. Alabama, 567 U.S.

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

constitute newly discovered facts that would invoke the protections afforded

by Section 9545(b)(1)(ii). (See PCRA petition, 8/13/12 at 3; appellant’s brief

at 7.)     Appellant further posits that his sentence of life imprisonment is

unconstitutional because Miller and Montgomery announced a new

constitutional right under Section 9545(b)(1)(iii) that applies retroactively.

(See Rule 907 response, 3/29/17 at 5-6, ¶ 17.) We disagree.

         In Miller, the Supreme Court recognized a constitutional right for

juveniles, holding that “mandatory life without parole for those under the age



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of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

against ‘cruel and unusual punishments.’”       Miller, 567 US at 465.      In

Montgomery, the Supreme Court recently held that its rule announced in

Miller applies retroactively on collateral review.   Montgomery, 136 S.Ct.

at 736.

      Here, however, the record reveals that appellant was 20 years old on

March 23, 1984, the date of the offense. As such, these cases are inapplicable.

See Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016)

(holding that an appellant’s assertion of the time-bar exception set forth in

Section 9545(b)(1)(iii) must be rejected because the constitutional rule

rendering the mandatory sentences of life imprisonment without possibility of

parole on juveniles unconstitutional applied only to those defendants who

were under 18 when offenses were committed).

      Moreover, this court has expressly rejected the notion that judicial

decisions constitute newly discovered facts that invoke the protections

afforded by Section 9545(b)(1)(ii). See Commonwealth v. Brandon, 51

A.3d 231, 235 (Pa.Super. 2012) (holding that a judicial determination does

not qualify as a previously unknown “fact” capable of triggering the timeliness

exception set forth in Section 9545(b)(1)(ii) of the PCRA).

      Lastly, to the extent appellant argues that his claim is eligible for

habeas corpus relief, we emphasize that where a petitioner raises a claim

that is cognizable under the PCRA, as is the case here, “[he] cannot escape



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the PCRA time-bar by titling his         petition or motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.

2013) (footnote omitted); see also Commonwealth v. DiMatteo, 177 A.3d

182, 197 (Pa. 2018) (stating that issues pertaining to the legality of a sentence

fall under the purview of the PCRA).

      Accordingly, for all the foregoing reasons, we discern no error on the

part of the PCRA court in dismissing appellant’s PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/27/18




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