J-S35013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY GATEWOOD                             :
                                               :
                       Appellant               :   No. 3264 EDA 2017

                Appeal from the PCRA Order September 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0633591-1982


BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 09, 2019

       Appellant, Billy Gatewood, appeals pro se from the September 15, 2017

order denying as untimely, his ninth petition filed pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The PCRA court summarized the factual and procedural history as

follows.

              In 1982, Appellant was convicted of [m]urder in the
       [s]econd     [d]egree,     [r]ape,   [r]obbery,    [b]urglary   and
       [c]onspiracy  [1] [in] the 1979 killing and sexual assault of a
       seventy-seven year[-]old victim.        [The trial court sentenced
       Appellant to life imprisonment for murder followed by additional
       concurrent terms of incarceration for rape, robbery, and
       conspiracy.] Appellant’s cousin and co-conspirator confessed to
       the murder and testified against Appellant at his trial. The cousin
       testified that after breaking into the victim’s apartment, Appellant


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1 18 Pa.C.S.A. § 2502(b), 18 Pa.C.S.A. § 3121, 18 Pa.C.S.A. § 3701, 18
Pa.C.S.A. § 3502, and 18 Pa.C.S.A. § 903, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      raped her and, prior to the killing, both criminals forced a broom
      handle into the victim’s vagina.

            Following the exhaustion of his direct appellate rights,
      Appellant, for [] most of the last quarter century, has been filing
      and litigating a series of petitions under the PCRA. The instant
      PCRA petition is the ninth such petition. After review of the record
      and the law, this [c]ourt dismissed Appellant’s PCRA petition as
      untimely on September 15, 2017.

PCRA Court Opinion, 1/16/2019, at 1. This appeal followed.

      Although Appellant raises a plethora of claims, we shall focus on those

contentions that implicate the timeliness of Appellant’s petition or any

time-bar exceptions that might apply. In particular, we consider whether the

decisions in Miller v. Alabama, 567 U.S. 460 (2012) or Commonwealth v.

Burton, 158 A.3d 618 (Pa. 2017) support Appellant’s claim that the PCRA

court had jurisdiction over this petition.

      When reviewing the denial of a PCRA petition, we must determine
      whether the PCRA court's order is supported by the record and
      free of legal error. Commonwealth v. Smith, 181 A.3d 1168,
      1174 (Pa. Super. 2018). Generally, we are bound by a PCRA
      court's credibility determinations. However, with regard to a
      court's legal conclusions, we apply a de novo standard. Id.
      However, we first address the timeliness of [Appellant’s] petition,
      as timeliness is a jurisdictional requisite and may not be altered
      or disregarded in order to address the merits of a petition. See
      Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1267
      (2007); see also Commonwealth v. Zeigler, 148 A.3d 849 (Pa.
      Super. 2016).

Commonwealth v. Lee, 206 A.3d 1, 6 (Pa. Super. 2019). To be considered

timely, a PCRA petition, including a second or subsequent petition, must be

filed within one year of the date that the underlying judgment of sentence

becomes final.    42 Pa.C.S.A. § 9545(b)(1).      “A judgment of sentence is

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deemed final at the conclusion of direct review, including discretionary review

in the United States Supreme Court and the Pennsylvania Supreme Court, or

upon expiration of the time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).”

Lee, 206 A.3d at 6.


      Here, Appellant’s judgment of sentence became final on March 31, 1985.

Thus, Appellant had until April 1, 1986 to file a timely PCRA petition; Appellant

filed the instant PCRA petition on May 31, 2012.          Appellant’s petition is

patently untimely. As such, we cannot address the merits of Appellant’s PCRA

petition unless he meets one of the following timeliness exceptions.

       (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 law 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.

      (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).

      Appellant seems to argue that he meets the requirements of Section

9545(b)(1)(iii) because of the United States Supreme Court’s decisions in

Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana,




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136 S.Ct. 718 (2016).2 It is undisputed that Appellant was 18 years old at

the time of his crimes. He argues, however, that Miller should apply to him

because he is “presumptively recognized as an eighteen (18) [year] old

juvenile [pursuant] to the Mental Health [& Mental] Retardation Act of 1966.”

Appellant’s Brief at VI. Appellant’s argument is unavailing.

       This Court has recently and repeatedly rejected arguments that Miller

extends to persons 18 years or older. See Lee, 206 A.3d at 11 (“age is the

sole factor in determining whether Miller applies to overcome the PCRA time-

bar and we decline to extend its categorical holding.”); Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016) (argument that Miller should be

extended to a defendant who was 19 years old at the time of his crimes

because his brain was not yet fully developed did not render a PCRA petition

timely pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii)). Therefore, Appellant’s first

claim fails.

       Appellant’s pro se brief is difficult to understand, but also appears to

invoke Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), to assert that

his petition is not time-barred. Generally, to qualify for the newly-discovered

facts exception in Section 9545(b)(1)(ii), petitioners must prove that the facts

upon which their claim is based were unknown and could not have been
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2 Miller established 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, 567 U.S. at 466
(emphasis added). Thereafter, the Supreme Court of the United States
decided in Montgomery that the Miller decision applies retroactively to cases
on collateral review. Montgomery, 136 S.Ct. at 732-737.

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discovered previously through the exercise of due diligence. In Burton, the

Pennsylvania Supreme Court held that incarcerated, pro se, PCRA petitioners

are not subject to a presumption that information that is of public record

cannot be “unknown” for purposes of Section 9545(b)(1)(ii).

       Appellant contends that his court-appointed defense attorney at trial

had a conflict of interest which rendered him incapable of providing effective

assistance. Specifically, Appellant alleges that his defense attorney at trial,

Attorney Canuso, was also the assistant district attorney who negotiated

Appellant’s cousin and co-conspirator’s plea agreement regarding the rape and

murder involved herein.          There is some support in the record for this

contention.3

       Appellant argues that Attorney Canuso’s involvement in this case as an

assistant district attorney constitutes a “newly discovered fact,” and that

Burton excuses his delay in discovering that information. Appellant thus

maintains that jurisdiction exists under the Section 9545(b)(1)(ii) timeliness

exception. Appellant’s argument is meritless.

       Appellant first raised issues about Attorney Canuso’s conflict of interest

in 2003.4      Thus, it was certainly not “newly discovered” in 2012 when
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3Appellant’s Exhibit “B” purports to be the timekeeping sheets of his cousin’s
court-appointed attorney, which make multiple references to “ADA Canuso.”

4 He argues that he received additional new information in 2006 from “an
anonymous whistle-blower” but admits that he filed a previous PCRA petition
(his eighth PCRA petition, filed October 10, 2006) based on that information.



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Appellant filed his petition in the instant matter.5 Appellant appears to be

under the impression that because of Burton, his original failure to discover

this fact is excused and his claim should now be reviewed on the merits.

Appellant, however, has not introduced any information that was not included

in either of his two prior PCRA petitions, filed and dismissed more than a

decade ago. Therefore, on its face, his claim does not meet the requirements

of Section 9545(b)(1)(ii).

       In his brief, Appellant asserts that Burton, “gave [Appellant] another

chance to assert his…conflict of interest[] claim[.]” Appellant’s Brief at 6. If

Appellant seeks to invoke Section 9545(b)(1)(iii) by citing Burton, he is

mistaken. This Court, in Commonwealth v. Kretchmar, 189 A.3d 459, 464

(Pa. Super. 2018), held that Burton did not establish a new constitutional

right or a watershed rule of criminal procedure. Thus, Burton does not afford

Appellant any relief.        The PCRA court was correct in finding it lacked



____________________________________________


Appellant’s Brief at 5. This court affirmed the dismissal of that petition as
untimely on May 20, 2009. Commonwealth v. Gatewood, 976 A.2d 1202
(Pa. Super. 2009) (judgment order).

5 In affirming the denial of Appellant’s seventh PCRA petition, filed September
16, 2003, which alleged Attorney Canuso’s conflict of interest, this Court
stated, “[Appellant] has failed to establish that any of this information was not
available through the exercise of due diligence by, at the latest, the time of
his first collateral petition. Attorney Canuso’s prior employment was a matter
of public record[.]” Commonwealth v. Gatewood, 3662 EDA 2003 (Pa.
Super. 2005) (unpublished memorandum). Moreover, this Court opined that
Appellant “failed to establish that this evidence, if presented at trial, would
have produced a different result.” Id.

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jurisdiction to address Appellant’s claims because he has not established that

a timeliness exception applies.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/19




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