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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
BRIAN ROSS,                               :          No. 1672 EDA 2017
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, April 26, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0225691-1992


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 23, 2018

        Brian Ross (“appellant”) appeals pro se from the order of the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.      Because we agree with the PCRA court that appellant’s facially

untimely petition failed to establish a statutory exception to the one-year

jurisdictional time limit for filing a petition under the PCRA, we affirm.

        The factual and procedural history, as stated by the PCRA court, is as

follows:

              On October 26, 1992, following a non-jury trial, the
              Honorable Robert A. Latrone found [appellant] guilty
              of second degree murder, robbery, possessing an
              instrument of crime, and criminal conspiracy.[1] On
              December 27, 1995, after denying [appellant’s]

1   18 Pa.C.S.A. §§ 2502(b), 3701, 907, and 903, respectively.
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          post-trial  motions,    Judge   Latrone  sentenced
          [appellant] to life imprisonment. The Pennsylvania
          Superior Court affirmed [appellant’s] judgment of
          sentence on April 8, 1998, and allocatur was
          subsequently       denied     on     August    31,
          1998.[Footnote 2]

               [Footnote 2] Commonwealth v. Ross,
               718   A.2d    347   (Pa.Super.   1998)
               (unpublished memorandum), appeal
               denied, 727 A.2d 130 (Pa. 1998).

          On February 17, 1999, [appellant] filed his first
          pro se Post Conviction Relief Act petition. Counsel
          was appointed and subsequently filed an amended
          petition. On March 6, 2003, the PCRA petition was
          dismissed without a hearing.       The Pennsylvania
          Superior Court affirmed the trial court’s dismissal on
          June 15, 2004, followed by the Pennsylvania
          Supreme     Court’s   denial    of    allocatur     on
          November 10, 2004.[Footnote 3]

               [Footnote 3] Commonwealth v. Ross,
               858 A.2d 1281 (Pa.Super. 2004)
               (unpublished memorandum), appeal
               denied, 863 A.2d 1145 (Pa. 2004).

          The instant petition was filed on August 3, 2012,
          followed by several amended petitions dated June 9,
          2014, and March 23, 2016. Pursuant to Pa.R.Crim.P.
          907, this court sent a notice of intent to dismiss the
          petition   as   untimely    without    exception    on
          February 28, 2017. In response to this court’s 907
          notice, [appellant] filed another petition on
          March 18, 2017. This court formally dismissed the
          petition on April 26, 2017.[Footnote 4] [Appellant]
          timely filed a notice of appeal to the Pennsylvania
          Superior Court on May 17, 2017.

               [Footnote 4] The order was issued more
               than twenty days after [appellant] was
               served with notice of the forthcoming
               dismissal of his Post-Conviction Relief Act
               petition. Pa.R.Crim.P. 907.


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Trial court opinion, 7/5/17 at 1-2.

      Appellant submitted a “Statement of Error Complained of on Appeal”

on May 17, 2017 along with his notice of appeal. On July 7, 2017, the trial

court filed an opinion, pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for this court’s review:

            I.     Whether (in) reviewing the (property) [sic] of
                   the (PCRA) court’s dismissal of appellant’s
                   PCRA filing, it was an abuse of discretion for
                   the (PCRA) court to determine that it was
                   untimely . . . where the petition was timely
                   filed under Title 42 Pa.C.S.A. §9545(b)(1)(iii)
                   and 42 Pa.C.S.A. §9545(b) (2), because newly
                   recognized constitutional rights were enacted
                   by the United States Supreme . . . Court
                   applying to appellant retroactively?

            II.    Whether the PCRA court errred [sic] and
                   denied appellant his federal and state
                   constitutional rights to due process of law by
                   dismissing     appellant’s  second/subsequent
                   PCRA petition wihout [sic] an evidentiary
                   hearing and appointment of counsel . . . where
                   appellant raised the timeliness of his
                   second/subsequent PCRA petition?

Appellant’s brief at 4 (full capitalization omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the


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            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that     judgment   of    sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period
            for filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

      As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

            The plain language of the PCRA provides that a
            judgment of sentence becomes final at the
            conclusion of direct review or when the time seeking


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             direct review expires.            See 42 Pa.C.S.A.
             § 9545(b)(3).     In fixing the date upon which a
             judgment of sentence becomes final, the PCRA does
             not refer to the conclusion of collateral review or the
             time for appealing a collateral review determination.
             Thus, the plain language of the PCRA statute shows
             that a judgment of sentence becomes final
             immediately upon expiration of the time for seeking
             direct review, even if other collateral proceedings are
             still ongoing.     As this result is not absurd or
             unreasonable, we may not look for further
             manifestations     of   legislative   intent.      See
             Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
             2013) (internal quotation marks omitted) (We may
             “look beyond the plain language of the statute only
             when words are unclear or ambiguous, or the plain
             meaning would lead to a result that is absurd,
             impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

     In    the     instant   case,    the   trial   court       sentenced   appellant    on

December 27, 1995.           This court affirmed the judgment of sentence on

April 8, 1998.     The Supreme Court of Pennsylvania denied his appeal on

August 31, 1998. See Commonwealth v. Ross, 718 A.2d 347 (Pa.Super.

1998) (unpublished memorandum), appeal denied, 727 A.2d 130 (Pa.

1998). Appellant’s sentence became final on November 30, 1998, when the

90-day period for petitioning for certiorari with the Supreme Court of the

United    States    ended.      See    42    Pa.C.S.A.      §    9545(b)(3);   see      also

U.S.Sup.Ct.R. 13.2 Appellant’s time for filing a timely PCRA ended one year




2 Although the 90-day period would have expired on November 29, 1998,
that day was a Sunday. Under U.S.Sup.Ct.R. 30, the deadline carried over
to the following Monday, November 30, 1998.


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after November 30, 1998.        Appellant filed the current PCRA petition on

August 3, 2012, almost 13 years after the PCRA time-bar. See 42 Pa.C.S.A.

§ 9545(b)(1).

      As noted above, the PCRA does enumerate exceptions to the one-year

requirement. In order to file a petition after one year has passed from the

final judgment of sentence, appellant must plead and prove one of the

following 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 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).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      Here, appellant asserts that he meets the timeliness exception set

forth in 42 Pa.C.S.A. § 9545(b)(1)(iii).       Initially, appellant asserts that

Rosemond v. United States, 572 U.S. 65 (2014), permits him to come


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under the constitutional right exception. However, a review of Rosemond

reveals that the case does not address a constitutional right at all. Rather,

Rosemond addresses what proof is necessary to establish that a defendant

aided and abetted in the commission of a crime under 18 U.S.C. § 924(c).

As the PCRA court noted, Rosemond is inapplicable because it interprets a

federal statute and does not create a new constitutional right.

       Appellant next contends that the Supreme Court of the United States

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

Louisiana, 136 S.Ct. 718 (2016), primarily relied on neuroscientific theories

regarding immature brain development, not age, and should be extended to

appellant who was convicted of murder when he was older than 18 at the

time of the commission of the crime.

       In Miller, the Supreme Court recognized a constitutional right for

juveniles, holding that “mandatory life without parole for those under the

age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition against ‘cruel and unusual punishments.’”       Miller, 567 U.S. at

465.    In Montgomery, the Supreme Court recently held that its rule

announced      in   Miller   applies   retroactively   on   collateral   review.

Montgomery, 136 S.Ct. at 736.

       This court has repeatedly recognized that Miller and its progeny do

not create a newly recognized constitutional right for petitioners who were

over the age of 18 at the time they committed their crimes.                 See



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Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding

that an appellant’s assertion of the time-bar exception set forth in

Section 9545(b)(1)(iii) must be rejected because the constitutional rule

rendering the mandatory sentences of life imprisonment without possibility

of parole on juveniles unconstitutional applied only to those defendants who

were under 18 when offenses were committed).

      Here, appellant acknowledges that he was over 18 years of age 3 on

the date the crime was committed, but posits that Miller and Montgomery

are applicable because his “brain definitely was not developed or matured”

at the time of this crime.    (Appellant’s brief at 10-11.)   This court has

repeatedly rejected similar arguments invoking Section 9545(b)(1)(iii) in this

manner.   In Commonwealth v. Montgomery, 181 A.3d 359 (Pa.Super.

2018), an en banc panel of this court recently stated as follows:

            This Court noted that Miller only applies to
            defendants who were “under the age of 18 at the
            time of their crimes.” [Furgess, 149 A.3d] at 94,
            quoting Miller, 567 U.S. at 465[.] Moreover, as
            this Court noted in Furgess, Appellant’s argument
            attempts to extend Miller to those adults whose
            brains were not fully developed at the time of their
            offense.    See Furgess, 149 A.3d at 94.          This
            argument fails, however, because “a contention that
            a newly-recognized constitutional right should be
            extended to others does not [satisfy the new
            constitutional rule exception to the PCRA’s timeliness
            requirement.]”      Id. at 95 (internal alteration
            omitted; emphasis removed)[.]

3  The certified record, however, indicates that appellant was born on
February 6, 1966, which would make him 24 years old at the time of the
crime. (See arrest report, 1/14/92.)


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             Instead, the PCRA requires that the Supreme Court
             of the United States or our Supreme Court extend
             the new right to a class of individuals, and make the
             extension retroactive, in order to satisfy the new
             constitutional    right      timeliness     exception.
             42 Pa.C.S.A. § 9545(b)(1)(iii). Montgomery merely
             made Miller retroactive for juvenile offenders whose
             judgments of sentence had already become final. It
             did not extend Miller’s holding to those individuals
             who committed homicides after they reached the age
             of 18. Furgess, 149 A.3d at 95.

Montgomery, 181 A.3d at 366 (some citations omitted; bracketed text in

original.) Based on the forgoing, Miller and Montgomery are inapplicable.

      Appellant    also   raises   the   exception    contained   in    42   Pa.C.S.A.

§ 9545(b)(1)(ii)    for    newly    discovered       facts   on   the    basis    that

Dr. Erin David Bigler, a neuropsychologist, has published research findings

after Miller and Montgomery that indicate that those between the ages of

18 and approximately 25 share the same characteristics as those under the

age of 18.   He also claims that research by Laurence Steinberg, a Temple

University psychologist who specializes in brain development, indicates that

certain parts of the brain that influence criminal culpability do not mature

until a person’s mid-twenties.

      A review of the record reveals that appellant has not claimed this

exception to the timeliness requirements based on academic/medical

research in his PCRA petition or in any amendments to the petition, in his

response to the dismissal notice pursuant to Pa.R.Crim.P. 907, in his concise

statement of errors complained of on appeal, or in the statement of


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questions involved in his brief.   Consequently, this issue is waived.   See

Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002) (providing that the

failure to raise an issue before a PCRA court constitutes waiver of claim for

appeal); Pa.R.A.P. 302(a) (stating issues not raised in lower court are

waived and cannot be raised for first time on appeal).

     Appellant has not successfully pled or proven that he meets the

exception to the timeliness requirements of the PCRA.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




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