J-S51038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEPHEN PALMER                             :
                                               :
                      Appellant                :   No. 517 EDA 2017

                  Appeal from the PCRA Order January 18, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1204301-2000


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 18, 2017

        Appellant Stephen Palmer appeals pro se from the January 18, 2017,

order entered in the Court of Common Pleas of Philadelphia County

dismissing his serial petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed.

After a careful review, we affirm.

        The relevant facts and procedural history underlying this appeal have

been aptly set forth previously by this Court as follows:

              On November 2, 2001, Appellant was sentenced to life
        imprisonment without the possibility of parole after the trial
        court convicted him of one count of first-degree murder, and two
        counts each of recklessly endangering another person and


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        possession of an instrument of crime.1 This Court affirmed the
        judgment of sentence on January 10, 2003. Commonwealth v.
        Palmer, 3490 EDA 2001 (Pa.Super. 2003) (unpublished
        memorandum). Appellant did not file a petition for allowance of
        appeal with our Supreme Court.
             On February 6, 2004, Appellant filed a timely counseled
        PCRA petition, which the PCRA court dismissed on October 25,
        2005. This Court affirmed that order on August 20, 2007.
        Commonwealth v. Palmer, 3289 EDA 2005 (Pa.Super. 2007)
        (unpublished memorandum)....On February 13, 2008, our
        Supreme Court denied Appellant’s petition for allowance of
        appeal.
               Appellant filed [a] pro se PCRA petition on April 25, 2012.
        Appellant retained private counsel, who filed an amended
        petition on December 10, 2013....On September 17, 2014, the
        PCRA court entered an order dismissing Appellant’s PCRA
        petition. [This Court affirmed that order on December 28,
        2015.]

Commonwealth v. Palmer, 2968 EDA 2014, at 1-3 (Pa.Super. 2015)

(unpublished memorandum) (footnote in original).

        On March 18, 2016, Appellant filed the instant pro se PCRA petition,

and on November 28, 2016, the PCRA court provided notice of its intent to

dismiss without an evidentiary hearing. Appellant filed a response, and by

order entered on January 18, 2017, the PCRA court dismissed Appellant’s

PCRA petition on the basis it was untimely filed.          This timely appeal

followed.2


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1
    18 Pa.C.S.A. §§ 2502(a), 2705, and 907(a), respectively.
2
  The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement; however, on February 22, 2017, the PCRA court filed a Pa.R.A.P.
(Footnote Continued Next Page)


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      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).        “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”           Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      The most recent amendments to the PCRA, effective January 19, 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). A judgment is deemed 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

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

      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 a claim previously was the result of
                interference    by    government     officials with    the
                presentation of the claim in violation of the Constitution
                       _______________________
(Footnote Continued)

1925(a) opinion setting forth its reasons for dismissing Appellant’s PCRA
petition as untimely.



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               or the law 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; or
      (iii)    the right asserted is a constitutional right that was
               recognized by 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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Further, a petitioner asserting a timeliness exception must file a petition

within sixty days of the date the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2).

      In the case before us, as the PCRA court aptly found, Appellant was

sentenced on November 2, 2001, and this Court affirmed his judgment of

sentence on January 10, 2003. Appellant did not file a petition for allowance

of appeal with our Supreme Court. Accordingly, his judgment of sentence

became final on February 10, 2003, when the thirty-day time period for

filing a petition for allowance of appeal with our Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.      Appellant had one year

from that date, or until February 10, 2004, to file a timely PCRA petition.

See 42 Pa.C.S.A. § 9545(b).      However, Appellant did not file the instant




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PCRA petition until March 18, 2016, and thus, it is patently untimely. See

42 Pa.C.S.A. § 9545(b)(1).

        This does not end our inquiry; however, as Appellant contends that he

is entitled to the “newly-discovered facts” exception as delineated by Section

9545(b)(1)(ii). In this vein, Appellant specifically alleges “the Brain Science

and Social Science revealed in Miller v. Alabama[3] constitutes [newly]

discovered evidence.”        Appellant’s Brief at 8 (footnote added).   Appellant

asserts he is entitled to be resentenced in light of “the scientific facts

presented in Miller and those defined as a class or category of individuals

that were included within the context of developing adolescence in Miller[.]”

Appellant’s Brief at 8.

        Assuming, arguendo, Appellant met the initial sixty day threshold, we

find Appellant is not entitled to Section 9545(b)(1)(ii)’s timeliness exception.

Our appellate courts have expressly rejected the notion that judicial

decisions can be considered “newly-discovered facts” which would invoke the

protections afforded by Section 9545(b)(1)(ii). See Commonwealth v.

Watts, 611 Pa. 80, 23 A.3d 980, 986 (2011) (holding a judicial opinion 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).



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3
    Miller v. Alabama, 132 S.Ct. 2455 (2012).



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      Appellant also asserts that he is entitled to the timeliness exception of

Section 9545(b)(1)(iii) relating to a new constitutional right that applies

retroactively. Specifically, Appellant asserts that his sentence is illegal under

Miller, supra, and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

      Assuming, arguendo, Appellant met the initial sixty day threshold, we

agree with the PCRA court that the dictates of Miller/Montgomery are

inapplicable to Appellant. In Miller, the High Court held that sentencing a

juvenile convicted of a homicide offense to mandatory life imprisonment

without parole violates the Eight Amendment’s prohibition to cruel and

unusual punishment. Accordingly, such sentences cannot be handed down

unless   a   judge    or   jury   first   considers   mitigating      circumstances.    In

Montgomery, the High Court held that its ruling in Miller is to be given

retroactive effect on collateral review.

      However, the Miller decision applies to only those defendants who

were “under the age of 18 at the time of their crimes.” Miller, 132 S.Ct. at

2460. Here, as Appellant admits, and the PCRA court found, Appellant was

twenty-five years old at the time he committed the instant murder. See

Appellant’s Brief at 6, 8; PCRA Court Opinion, filed 2/22/17, at 5 n.2.

Therefore,    we     agree   with     the   PCRA      court    that    the   holdings   in

Miller/Montgomery are inapplicable to Appellant.

      Appellant       argues,       nevertheless,       that      he     may      invoke

Miller/Montgomery because his immature and/or diminished brain was not


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fully developed at the time of the murder.         Thus, Appellant seeks an

extension of Miller/Montgomery to persons convicted of murder who were

older at the time of their crimes than the class of defendants subject to the

Miller holding.    However, this Court has previously rejected such an

argument.     See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super.

2016) (holding the nineteen-year-old appellant was not entitled to relief

under Miller/Montgomery on collateral review; rejecting argument that he

should be considered a “technical juvenile”).

      Finally, to the extent Appellant contends generally that his sentence is

illegal and that such a claim is non-waivable, we note that that “[a]lthough

legality of sentence is always subject to review within the PCRA, claims must

still first satisfy the PCRA’s time limits or one of the exceptions thereto.”

Commonwealth       v.   Fowler,   930   A.2d    586,   592   (Pa.Super.   2007)

(quotation marks, quotations, and citations omitted).

      For all of the aforementioned reasons, we agree with the PCRA court

that Appellant’s instant PCRA petition is untimely, and he has failed to

invoke successfully any of the timeliness exceptions. Thus, we affirm.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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