J-S52034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

TILLMAN TYRONE STEWART

                         Appellant                  No. 740 EDA 2014


              Appeal from the PCRA Order February 21, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0006664-2005


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED SEPTEMBER 23, 2014

     Appellant, Tillman Tyrone Stewart, appeals from the order entered in

the Bucks County Court of Common Pleas, denying his first petition filed

                                                            .S.A. §§ 9541-

9546. We affirm.

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

On August 19, 2005, Appellant shot and killed the victim after Appellant

fired a gun several times into a crowd of people.       Appellant entered a

negotiated guilty plea on July 10, 2006, to second degree murder and

related offenses.    That same day, the court sentenced Appellant to

mandatory life imprisonment without parole for the murder conviction. This

Court affirmed the judgment of sentence on April 1, 2008.              See
_____________________________

*Former Justice specially assigned to the Superior Court.
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Commonwealth v. Stewart, 953 A.2d 840 (Pa.Super. 2008) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court.

     The docket entries indicate Appellant filed a counseled PCRA petition

on August 28, 2012. The PCRA court issued notice on January 6, 2014, of




21, 2014.   On March 3, 2014, Appellant timely filed a counseled notice of

appeal.   The PCRA court ordered Appellant on March 5, 2014, to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on March 14, 2014.

     Appellant raises the following issue for our review:

          WHETHER THE TRIAL COURT ERRED BY FAILING TO APPLY
          MILLER V. ALABAMA, GRAHAM V. FLORIDA AND
          ROPER V. SIMMONS, WHICH STAND FOR THE
          PROPOSITION THAT MEN UNDER AGE 25 DO NOT HAVE
          FULLY DEVELOPED BRAINS, AND THEREFORE THEY
          SHOULD     BE   TREATED     AS    JUVENILES   FOR
          CONSTITUTIONAL    PURPOSES,    THUS   MAKING    IT
          UNCONSTITUTIONAL TO SENTENCE A MAN UNDER 25 TO
          A MANDATORY MINIMUM OF LIFE WITHOUT PAROLE
          (LWOP) FOR MURDER.



     As a preliminary matter, we must determine whether Appellant timely

filed his PCRA petition.    Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

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PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830



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

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

          (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).


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       Additionally, a petitioner asserting a timeliness exception must file a

petition within sixty (60) days of the date the claim could have been



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 trial court has no power to address the substantive merits of a

                                  Commonwealth v. Gamboa-Taylor, 562 Pa.

70, 77, 753 A.2d 780, 783 (2000).



2008, upon expiration of the 30 days to file a petition for allowance of

appeal with our Supreme Court. The docket entries indicate Appellant filed

his PCRA petition on August 28, 2012, more than four (4) years after his



patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

       Nevertheless, Appellant argues that new constitutional rights recently

recognized by the United States Supreme Court in Miller v. Alabama, ___

U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)1 excuse the untimeliness



____________________________________________


1
  In Miller, the United States Supreme Court held that a mandatory
sentence of life imprisonment without the possibility of parole for those
under the age of eighteen (18) at the time of their crimes violates the Eighth
(Footnote Continued Next Page)


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of his PCRA petition.         See 42 Pa.C.S.A. § 9545(b)(1)(iii).    Specifically,

Appellant alleges that under Miller, which Appellant contends applies



violation of Article I, Section 13 of the Pennsylvania Constitution. Appellant

acknowledges he was over eighteen (18) years-old at the time of the

offenses, but he claims that men under the age of twenty-five (25) years-old

have underdeveloped brains and should be treated as juveniles. Appellant

concludes this Court must vacate and remand for resentencing.                 We

disagree.

      In the present case, Appellant was twenty-four (24) years-old when he

shot and killed the victim.         Thus, Miller does not create for Appellant a

newly recognized constitutional right exception.           See 42 Pa.C.S.A. §

9545(b)(1)(iii); Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.

2013) (explaining Miller did not create newly-recognized constitutional right

that serves as exception to PCRA time restrictions, where petitioners were

twenty-one (21) and nineteen (19) years old, respectively, when they

committed underlying crimes).

      Moreover, the United States Supreme Court filed Miller on June 25,

2012. Thus, any petition alleging a newly recognized constitutional right had

                       _______________________
(Footnote Continued)

                                                                    See Miller,
supra at ___, 132 S.Ct. at 2469, 183 L.Ed.2d at ___.


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to be filed by August 24, 2012. See Commonwealth v. Brandon, 51 A.3d

231 (Pa.Super. 2012) (explaining 60-day period runs from date of

underlying judicial decision for purposes of Section 9545(b)(1)(iii)).         The

docket entries indicate Appellant filed his PCRA petition on August 28, 2012.

So, even if Miller could apply to Appellant, he failed to meet the 60-day

rule. See 42 Pa.C.S.A. § 9545(b)(2).2

       In any event, on October 30, 2013, our Supreme Court announced

that Miller does not apply retroactively to judgments of sentence which

became final before the filing date of Miller (June 25, 2012).                 See

Commonwealth v. Cunningham, ___ Pa. ___, 81 A.3d 1 (2013).                     The

U.S.   Supreme      Court    has    denied     certiorari   in   Cunningham.   See

Cunningham v. Pennsylvania, 2014 WL 797250 (filed June 9, 2014).



       Order affirmed.




____________________________________________


2
  Appellant also cites the United States Supreme Court decisions in Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (dealing
with juveniles and death penalties), filed on March 1, 2005, and Graham v.
Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (dealing with
juveniles and life sentences for non-homicide offenses), filed on May 17,
2010. Neither case is apposite, because Appellant was not a juvenile when
he shot and killed the victim, Appellant did not receive the death penalty,
and Appellant committed a homicide.


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/23/2014




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