J-S23039-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
MONROE MERRITT,                           :
                                          :
                Appellant                 :    No. 2085 EDA 2014

             Appeal from the PCRA Order Entered June 16, 2014,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-1217361-1976

BEFORE:     DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED MAY 28, 2015

      Monroe Merritt (Appellant) appeals from an order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.1 We affirm.

      On November 15, 1977, a jury convicted Appellant of second-degree

murder, robbery, criminal conspiracy, and possession of an instrument of

crime in connection with the shooting death of George Dunbar, Sr., during a

robbery at the decedent’s home.        On January 21, 1982, the trial court

sentenced   Appellant   to   an   aggregate   judgment   of   sentence   of   life

imprisonment. This Court affirmed the judgment of sentence on October 9,


1
 Appellant has filed an “Application for Post-Submission Communication,” in
which he asks this Court to take judicial notice of the fact that on August 16,
2012, Appellant filed an amendment to his PCRA petition raising a claim
pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012). Upon review, we
conclude that this filing is listed on the docket and included in the record.
Thus, Appellant’s motion is denied as moot.

*Retired Senior Judge assigned to the Superior Court.
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1986, and our Supreme Court denied allowance of appeal on October 13,

1987.     Commonwealth v. Merritt, 517 A.2d 1365 (Pa. Super. 1986)

(unpublished memorandum), appeal denied, 553 A.2d 711 (Pa. 1987).2

        Following a series of unsuccessful petitions for post-conviction relief,

Appellant filed the PCRA petition at issue here on May 9, 2012. Appellant

then filed two amendments to his petition: one on August 16, 2012, and one

on July 15, 2013.      On February 10, 2014, the PCRA court issued notice

pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition

as untimely filed without holding an evidentiary hearing. The court formally

dismissed the petition on June 16, 2014, and Appellant timely filed a notice

of appeal.

        Our standard of review of an order dismissing a PCRA petition is

limited to examining whether the PCRA court’s rulings are supported by the

evidence of record and free of legal error. Commonwealth v. Brandon, 51

A.3d 231, 233 (Pa. Super. 2012).       Under the PCRA, all petitions must be

filed within one year of the date that the petitioner’s judgment became final,

unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1);

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes

of the PCRA, a judgment becomes final at the conclusion of direct review.



2
  The notable delays in this case are explained in Commonwealth v.
Monroe, 660 A.2d 123 (Pa. Super. 1995) (unpublished memorandum),
appeal denied, 668 A.2d 1127 (Pa. 1995).


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42 Pa.C.S. § 9545(b)(3). “The PCRA’s time restrictions are jurisdictional in

nature.” Chester, 895 A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely,

neither this Court nor the trial court has jurisdiction over the petition.

Without jurisdiction, we simply do not have the legal authority to address

the substantive claims.’”    Id. (quoting Commonwealth v. Lambert, 884

A.2d 848, 851 (Pa. 2005)).

      Appellant clearly filed his petition well over one year after his

judgment became final.      Thus, he untimely filed the petition, unless the

petition alleged and Appellant offered to prove one or more of the following:

      (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).

      Appellant contends that his petition fits under the exception found at

subsection 9545(b)(1)(iii).     Specifically, Appellant asserts that he has

satisfied the new constitutional right exception to the PCRA time-bar

pursuant to the United States Supreme Court’s decisions in Missouri v.



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Frye, 132 S.Ct. 1399 (2012), Miller v. Alabama, 132 S.Ct. 2455 (2012),

and Trevino v. Thaler, 133 S.Ct. 1911 (2013).          However, this Court has

concluded that Frye3 does not create a new constitutional right and, as

such, does not provide an exception to the timeliness requirements of the

PCRA under subsection 9545(b)(1)(iii). Commonwealth v. Hernandez, 79

A.3d 649, 654 (Pa. Super. 2013); Commonwealth v. Feliciano, 69 A.3d

1270, 1276-77 (Pa. Super. 2013).            Moreover, in Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014),

our Supreme Court held that the United States Supreme Court’s holding in

Miller does not apply retroactively and, thus, Miller likewise does not entitle

Appellant to relief.4 Finally, Trevino dealt solely with federal habeas corpus

relief and whether a state prisoner’s procedural default, i.e., failure to raise a

claim of ineffective assistance of counsel in a state court, could be excused.

Trevino, 133 S.Ct. at 1921. Thus, although Trevino represents a further




3
  The Supreme Court in Frye held “that, as a general rule, defense counsel
has the duty to communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused.” Frye,
132 S.Ct. at 1408.
4
  Further, the holding of Miller is “that the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders.” Miller, 132 S.Ct. at 2469 (emphasis added).
Appellant was not a juvenile at the time this incident occurred and, thus, the
Miller decision does not apply to Appellant, despite his arguments to the
contrary.


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J-S23039-15


development in federal habeas corpus law, it is irrelevant to the time

restrictions of our PCRA.

      Accordingly, the PCRA court properly concluded that Appellant’s

petition was untimely filed without exception.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/28/2015




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