J-S26012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    CERRONE FURMAN,

                             Appellant                 No. 1754 EDA 2017


               Appeal from the PCRA Order Entered April 25, 2017
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0402812-2001
                            CP-51-CR-0402822-2001


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 30, 2018

        Appellant, Cerrone Furman, appeals pro se from the April 25, 2017 order

dismissing, as untimely, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. After careful review,

we affirm.

           On October 22, 1999, Appellant and a co-conspirator, Marlon
        Mullings, assaulted Mr. Clinton, the co-owner of a Philadelphia
        area cement company, and forced him at gunpoint to hand over
        envelopes containing the company’s weekly payroll.           While
        Appellant and Mullings were exiting the building, the co-owner of
        the business, Mr. McConigley, arrived in his car. As Appellant and
        Mullings fled down the street toward a third co-conspirator waiting
        in a getaway car,5 Mr. McConigley pursued the two in his car.
        When Mr. McConigley drew alongside them, Mullings fired multiple
        gunshots into the open driver’s side window of Mr. McConigley’s
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*   Former Justice specially assigned to the Superior Court.
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     car. Appellant and Mullings jumped into the awaiting getaway
     vehicle and sped away. Mr. McConigley died a few minutes later
     as a result of the gunshot wounds to his head, chest, and neck.
        5A fourth co-conspirator was not at the site of the robbery,
        because he had previously worked for the victims and feared
        being recognized by them. This man knew when the victims
        paid their employees and scheduled the robbery for the time
        when he believed they would have significant cash on hand.

         One month earlier, on September 9, 1999, Appellant and a
     different man had burglarized a home in central Pennsylvania,
     stealing a large safe. They later forced open the safe, and
     Appellant and his cohorts removed four guns from it.6 On October
     13, 1999, nine days before the murder of Mr. McConigley,
     Appellant and three other men robbed a Harrisburg area gas
     station using the stolen guns. Appellant used the same stolen gun
     in both the Harrisburg and Philadelphia robberies.
        6 Appellant’s cohorts in removing the guns from the safe
        included two of his co-conspirators in the Mr. Clinton
        robbery, but not Mullings.

        Appellant raised several pre-trial motions, including a motion
     in limine to exclude evidence of the burglary and gas station
     robbery, which [were] denied. On April 27, 2005, a jury convicted
     Appellant of the aforementioned crimes. On June 17, 2005,
     Appellant was sentenced to life imprisonment for second-degree
     murder, and concurrent terms … of five to ten years[’
     incarceration] for conspiracy and two to five years[’ incarceration]
     for possessing an instrument of crime.

Commonwealth v. Furman, No. 2100 EDA 2005, unpublished memorandum

at 1-2 (Pa. Super. filed September 13, 2006). On direct appeal, this Court

affirmed Appellant’s judgment of sentence, and our Supreme Court denied his

petition for allowance of appeal. Commonwealth v. Furman, 911 A.2d 180

(Pa. Super. 2006) (unpublished memorandum), appeal denied, 917 A.2d 313

(Pa. 2007).




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        Appellant filed a timely, pro se PCRA petition, his first, on June 15, 2007.

Counsel was appointed, and an amended petition was filed on Appellant’s

behalf on May 12, 2008.           The PCRA court issued an order denying the

amended petition on December 12, 2008.            Appellant did not file a timely

appeal from that order.        However, on January 27, 2009, Appellant filed a

petition for leave to file a notice of appeal nunc pro tunc.1 The PCRA court

reinstated his appellate rights on February 13, 2009, and Appellant promptly

filed a nunc pro tunc notice of appeal a week later. On July 7, 2010, this Court

vacated the February 13, 2009 order reinstating Appellant’s appeal rights, and

affirmed the December 12, 2008 order denying his PCRA petition; our

Supreme Court denied Appellant’s subsequent petition for allowance of

appeal.     Commonwealth v. Furman, 6 A.3d 549 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 20 A.3d 1210 (Pa. 2011).

        On August 8, 2012, [Appellant] filed the instant, pro se PCRA
        petition, his third. [Appellant] also submitted a supplemental
        filing in 2016 that was reviewed jointly with his 2012 petition.
        Pursuant to Pennsylvania Rule of Criminal Procedure 907,
        [Appellant] was served notice of the PCRA court's intention to
        dismiss his petition on February 22, 2017. [Appellant] submitted
        a response to the Rule 907 notice on March 14, 2017.[2] On April
        25, 2017, the PCRA court dismissed his petition as untimely. On
        May 23, 2017, the instant notice of appeal was timely filed with
        the Superior Court.


____________________________________________


1   This petition constituted Appellant’s second PCRA petition.

2Although the PCRA court characterizes this as a “response” to its Rule 907
notice, Appellant styled it as a motion for an extension of time to file his Rule
907 response.

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PCRA Court Opinion (PCO), 7/5/17, at 2.        The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) statement; it filed its Rule 1925(a)

opinion on July 5, 2017.

      Appellant now presents the following questions for our review:

      [1.] Was the PCRA court's dismissal of [the] petition incorrect
      when it ignored petitioner's timely request for an enlargement of
      time to object to it’s [sic] [Rule] 907 notice to dismiss[] without
      giving any reason why [the] request was denied[?]

      [2.] Was [the] PCRA court's mis-labeling of [the] petition under a
      totally different subsection th[a]n petitioner had raised his claims
      unjustified when den[y]ing a needed hearing[] when petitioner
      raised “after discovered facts[?”]

      [3.] Does the Equal Protection Clause to the U[nited States]
      Const[itution] and it’s [sic] strict scrutiny analysis, and ordered
      liberty, and fundamental fairness require a hearing in this instant
      matter[?]

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the




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judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (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. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      In Appellant’s first issue, he claims that this matter must be remanded

for him to file a response to the PCRA court’s Rule 907 notice because the

PCRA “court gave no reason” why his request for an extension of time to file

his Rule 907 response was denied, citing Commonwealth v. Hopfer, 965

A.2d 270 (Pa. Super. 2009).       As noted above, the PCRA court construed

Appellant’s timely request for an extension of time to file his response to the


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court’s Rule 907 notice as his Rule 907 response. See PCO at 2. Moreover,

because the PCRA court did not direct Appellant to file a Rule 1925(b)

statement, the court’s opinion does not address Appellant’s first claim.

       However, Appellant fails to explain in his brief, and he did not explain in

his extension-of-time request, what he specifically intended to provide in his

Rule 907 response had his request been granted. In his extension-of-time

request, Appellant indicated that he intended to use any enlargement of time

to “[a]mend his PCRA [petition] to cure any [d]efects and [f]ile a [meritorious]

objection” to the Rule 907 notice.             Appellant’s Application for Relief for

Extension of Time and Motion for Leave to Amend PCRA and Correct Defects,

3/14/17, at 3.     In his brief, filed six months later, Appellant still does not

explain what specific issues he would have raised in a Rule 907 response.

       In Hopfer, also involving an untimely PCRA petition, the PCRA court

failed to file notice pursuant to Rule 907. We vacated the order dismissing

the appellant’s PCRA petition and remanded for the PCRA court to provide the

appellant with an opportunity to file a Rule 907 response, rejecting the lower

court’s   reasoning     that    such    notice   was   not   required   because   the

Turner/Finley3 procedure was scrupulously followed.4 We held that “service

____________________________________________


3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

4 On that basis, the PCRA court had reasoned that the appellant “was fully
aware of the deficiencies of his own claims prior to his petition being
dismissed….” Hopfer, 965 A.2d at 274.


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of any notice of dismissal, whether in the form of a Rule 907 notice by the

court or a Turner/Finley no-merit letter, must occur at least [20] days prior

to an official dismissal order.” Hopfer, 965 A.2d at 275.

          Instantly, the PCRA court did not violate the holding in Hopfer. The

court filed its Rule 907 notice on February 22, 2017, and denied Appellant’s

petition on April 25, 2017. Appellant’s argument that the court erred by not

responding to his request for additional time to file a Rule 907 response is not

analogous to a claim that the court failed to provide an appellant the

opportunity to respond. Thus, Hopfer does not support Appellant’s claim.

          Moreover, with respect to untimely PCRA petitions, not every defect in

Rule 907 procedure requires a remedy. Even when a petitioner preserves a

claim that a PCRA court failed altogether to provide notice of dismissal under

Rule 907, “it does not automatically warrant reversal” when “the petition is

untimely[.]”      Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.

2013). Here, the PCRA court denied Appellant’s PCRA petition as untimely,

yet nothing in his argument regarding the failure of the PCRA court to grant

him additional time to file a Rule 907 response bears upon the timeliness of

his petition.      Indeed, Appellant has failed to demonstrate that he was

adversely affected at all by the absence of a Rule 907 response in this case.

Accordingly, we conclude that Appellant’s first claim does not entitle him to

relief.

          We now turn to the question of whether Appellant’s PCRA petition meets

one of the timeliness exceptions set forth in Section 9545(b)(1). Appellant

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asserts that his discovery of “[n]ew [n]eurologic[a]l facts data” that he “copied

off the internet with a time stamp of July 3rd, 2012[,]” Appellant’s Brief at 7,

constitutes “facts upon which the claim is predicated [that] were unknown to

the petitioner and could not have been ascertained by the exercise of due

diligence[,]” 42 Pa.C.S. § 9545(b)(1)(ii). Appellant further asserts that the

PCRA court misconstrued his claim as seeking relief under Section

9545(b)(1)(iii), the newly-recognized constitutional right exception.

      Indeed, the PCRA court analyzed Appellant’s claim under Section

9545(b)(1)(iii), as Appellant seeks to utilize his newly-discovered facts to

assert that he is entitled to relief pursuant to Miller v. Alabama, 567 U.S.

460 (2012).     In Miller, the Supreme Court of the United States held that

mandatory life imprisonment without parole (MLWOP) for those under the age

of 18 at the time of their crimes violates the Eighth Amendment.

Subsequently, in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the High

Court held that its decision in Miller applies retroactively on state collateral

review.   Here, the PCRA court determined that because Appellant was not

under the age of 18 at the time he committed the offense resulting in his

MLWOP sentence, he could not invoke Miller or Montgomery to satisfy

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

Super. 2016) (holding that Miller does not apply to defendants who were over

the age of 18 at the time of their offense).

      Although Appellant does invoke a different timeliness exception,

specifically, Section 9545(b)(1)(ii), he is still not entitled to relief. Simply put,

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it is implicit in the statutory language of Section 9545(b)(1)(ii) that “the claim”

that is affected by the newly-discovered facts must be a claim upon which

relief could be granted under current law. Thus, even assuming Appellant was

duly diligent in discovering the new facts at issue, those facts do not support

an existing, legally cognizable claim. Proof that Appellant’s brain was not a

fully developed adult brain in biological terms does not entitle him to relief

under Miller, as that decision, by its own terms, and as interpreted by this

Court in Furgess, applies only to legal juveniles.5             Appellant cannot

simultaneously invoke a wholly novel claim (that Miller applies to all biological

juveniles, not just legal juveniles), and newly-discovered facts to support that

claim (Appellant was a biological juvenile when he committed his crime), in

seeking relief under Section 9545(b)(1)(ii).6 In our view, the legislature did

not intend Section 9545(b)(1)(ii) to fully eviscerate the limitations of Section

9545(b)(1)(iii) by creating a backdoor through which one could assert the

existence of previously unrecognized constitutional rights.            “Statutory

language ‘cannot be construed in a vacuum. It is a fundamental canon of

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5 Herein, we define ‘legal juveniles’ and ‘legal adults’ as persons who are under
and over 18 years old, respectively. ‘Biological juveniles’ are persons whose
brains have not fully developed to biological adulthood, regardless of their
legal status as juveniles or adults.

6 This is not to say that Miller could never be invoked in the context of Section
9545(b)(1)(ii). Newly-discovered evidence that a petitioner was a legal
juvenile when he committed his offense could satisfy that provision, because
the underlying claim in that situation, a straightforward application of both
Miller and Montgomery, is one upon which relief could be granted under the
current interpretation of the law.

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statutory construction that the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme.’” Sturgeon v.

Frost, 136 S.Ct. 1061, 1070 (2016) (quoting Roberts v. Sea–Land

Services, Inc., 566 U.S. 93, 101 (2012)).

       Appellant’s final claim on appeal is that equal protection principles

dictate that Miller should apply to crimes committed by biological juveniles,

not just to legal juveniles. This is a direct assertion of a new constitutional

right, which falls under the purview of Section 9545(b)(1)(iii).         Thus far,

Pennsylvania case law has rejected this type of expansion or interpretation of

the   right   announced      in   Miller.      See   Furgess,   supra;   see   also

Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (applying

Furgess).7      Most importantly, neither “the Supreme Court of the United

States [n]or the Supreme Court of Pennsylvania” has recognized the existence

of such a right. 42 Pa.C.S. § 9545(b)(1)(iii). Thus, this claim also lacks merit.

       In conclusion, we hold that Appellant has not met any exception to the

PCRA’s timeliness exceptions. Accordingly, we lack jurisdiction to consider the

merits of his petition.



____________________________________________


7We acknowledge that a case raising seemingly similar arguments regarding
Miller is currently pending en banc review before this Court. See
Commonwealth v. Lee, 1891 WDA 2016, Order, 3/9/2018. Nevertheless,
we are bound by current precedent, as this “panel is not empowered to
overrule another panel of the Superior Court.” Commonwealth v. Beck, 78
A.3d 656, 659 (Pa. Super. 2013).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/18




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