J-S15011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    WILLIAM J. WELCH

                             Appellant                 No. 2883 EDA 2017


             Appeal from the PCRA Order entered August 10, 2017
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-1106141-1987


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                               FILED MAY 30, 2018

        Appellant, William J. Welch, appeals from the August 10, 2017 order of

the Court of Common Pleas of Philadelphia County, dismissing his first 1

amended petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The factual and procedural background are not in dispute. Briefly, on

October 4, 1987, Appellant was arrested and charged with murder and related

offenses. On February 10, 1988, a jury found Appellant guilty of first-degree


____________________________________________


1 It is unclear from the record whether the instant PCRA petition, filed in 2012,
was Appellant’s first one. The PCRA court noted, “[d]ue to the age of this
case, this [c]ourt cannot determine whether [Appellant] filed a previous PCRA
petition. This [c]ourt, therefore, treats the instant PCRA petition as his first.”
PCRA Court Opinion, 8/10/17, at 1 n.2. The Commonwealth does not dispute
the PCRA court’s characterization of the instant petition. Accordingly, we will
to treat the instant petition as Appellant’s first PCRA petition.
J-S15011-18



murder, robbery, and theft by unlawful taking. On September 26, 1988, the

trial court imposed a sentence of life imprisonment without parole for the

murder conviction, and a concurrent term of five to twenty years for robbery.

At the time of the murder, Appellant was 21 years old.

       Appellant filed a direct appeal with this Court. On April 17, 1989, we

affirmed his judgment of sentence. On August 9, 2012, Appellant filed a pro

se PCRA petition. On July 3, 2017, through appointed counsel, Appellant filed

an amended petition.2 On July 6, 2017, upon review, the PCRA court filed a

notice of intent to dismiss under Pa.R.Crim.P. 907. On August 10, 2017, the

PCRA court dismissed the instant petition. This appeal followed.

       Appellant raises only one issue for our consideration. Namely, Appellant

asks us to extend the holding of Miller v. Alabama, 132 S.Ct. 2455 (2012),3

to those who were less than 25 years old at the time of the underlying crime.

We decline to do so.




____________________________________________


2Neither the parties nor the PCRA court explains the approximately five-year
delay in addressing the instant petition.

3 In Miller, the U.S. Supreme Court 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, 132
S.Ct. at 2460 (emphasis added). In Montgomery v. Louisiana, 136 S.Ct.
718 (2016), the Unites States Supreme Court held that Miller was a new
substantive rule that, under the United States Constitution, must be
retroactive in cases on state collateral review. Montgomery, 136 S.Ct. at
736.


                                           -2-
J-S15011-18


      We have addressed the very same issue on numerous occasions. We

have repeatedly held that Miller does not apply to defendants who were

eighteen or older when they committed murder. See, e.g., Commonwealth

v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016). As noted above, Appellant

was 21 years old at the time of the underlying crimes. Accordingly, Appellant

has no relief under Miller.

      Appellant also argues that he is due relief because equal protection

requires that adults are entitled to the same protection as juveniles.       We

disagree. Appellant is not similarly situated to the juvenile offenders at issue

in Miller. Indeed, the crux of Miller’s holding is that children and adults are

“constitutionally different . . . for purposes of sentencing.” Miller, 132 S.Ct.

at 2464. In light of his age at the time he committed the underlying crimes,

Appellant is not similarly situated to the juvenile offenders at issue in Miller.

The claim, therefore, is meritless. See City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985) (explaining that the Equal Protection Clause

of the Fourteenth Amendment “is essentially a direction that all persons

similarly situated should be treated alike.”).

      Appellant finally argues that despite the fact he was an adult at the time

of the crimes, Miller should be applied to him because his brain, as is the case

in juveniles, was not fully developed.    We rejected a similar contention in

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




                                      -3-
J-S15011-18


two appellants, who were nineteen and twenty-one years of age at the time

of their underlying crimes, and were sentenced to life imprisonment, claimed:


      [T]hat because Miller created a new Eighth Amendment right,
      that those whose brains were not fully developed at the time of
      their crimes are free from mandatory life without parole
      sentences, and because research indicates that the human mind
      does not fully develop or mature until the age of 25, it would be a
      violation of equal protection for the courts to treat them or anyone
      else with an immature brain, as adults. Thus, they conclude that
      the holding in Miller should be extended to them as they were
      under the age of 25 at the time of the murder and, as such, had
      immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended to

others   does   not    render   their   petition    timely   pursuant   to   [S]ection

9545(b)(1)(iii).”     Id. (emphasis added).        Thus, as in Cintora, Appellant’s

claim that Miller applies to the case sub judice based on his mental

development is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/18




                                         -4-
