J-S77029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR RICHARDSON                            :
                                               :
                       Appellant               :   No. 1857 EDA 2018

               Appeal from the PCRA Order Entered June 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0109031-2000


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 03, 2019

       Appellant, Omar Richardson, appeals pro se from the June 5, 2018 Order

dismissing as untimely his second Petition filed under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On March 13, 2001, a jury convicted Appellant of First-Degree Murder,

Possessing Instruments of Crime, and Criminal Conspiracy for the shooting

death of Jose McDuffy on September 11, 1999.1 On May 18, 2001, the trial

court imposed a sentence of life imprisonment for First-Degree Murder

followed by an aggregate term of 15 to 30 years’ incarceration for the other

convictions. On October 16, 2002, this Court affirmed Appellant’s Judgment

of Sentence, and on September 16, 2003, the Pennsylvania Supreme Court

denied Appellant’s Petition for Allowance of Appeal. See Commonwealth v.
____________________________________________


1Appellant’s date of birth is January 2, 1979 and Appellant was 20 years old
when he committed the crime.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Richardson, 815 A.2d 1130 (Pa. Super. 2002) (unpublished memorandum),

appeal denied, 833 A.2d 142 (Pa. 2003). Appellant did not seek review by

the United States Supreme Court.               Appellant’s Judgement of Sentence,

therefore, became final on December 15, 2003. See 42 Pa.C.S. § 9545(b)(3);

U.S. Sup. Ct. R. 13.

       On March 25, 2016, more than twelve years after his Judgment of

Sentence became final, Appellant filed the instant pro se PCRA Petition, his

second, raising a claim that his sentence is illegal under Montgomery v.

Louisiana, 136 S.Ct. 718 (2016)2, and Alleyne v. United States, 570 U.S.

99 (2013).3 On April 3, 2018, the PCRA court issued a Pa.R.Crim.P. 907 Notice

advising Appellant of its intent to dismiss his Petition without a hearing.

Appellant filed a timely pro se Response raising an additional claim that his

sentence is illegal under Miller v. Alabama, 567 U.S. 460 (2012).4 On June

5, 2018, after considering Appellant’s Response, the PCRA court dismissed

Appellant’s Petition as untimely. This pro se appeal followed.


____________________________________________


2 In Montgomery, the U.S. Supreme Court held that its decision in Miller,
infra, applies retroactively. Montgomery, 136 S.Ct. at 732.

3In Alleyne, the U.S. Supreme Court held that, other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved beyond
a reasonable doubt. Alleyne, 570 U.S. at 112-13.

4 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470.

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     Appellant raises the following issues on appeal:

     1. Newly Recognized Right:          Whether the United States
        Supreme Court case Montgomery v. Louisiana, [supra], has
        rendered a new executive decision that applies to all case[s] of
        substantive rules of constitutional law, thereby, making it
        “constitutionally” permissible, by due process of law, for a
        defendant to raise said claim where application applies under
        U.S.C.A. 5th, 8th, and 14th.

     2. Alleyne Claim being Retroactively Applicable as a
        Substantive Rule: Whether the ruling within Montgomery,
        [supra], gives retroactive effect to the Alleyne, [supra],
        case when involving new watershed procedural rules and
        substantive rules of constitutional law of which applies to a
        defendant.

     3. Disproportionate Punishment for Youth Offenders Under
        25 Yrs. Old:        Whether according to Montgomery v.
        Lousiana, [supra], citing Miller v. Alabama, [supra],
        [Appellant]’s sentence is a disproportionate punishment as a
        mandatory life-without-parole for a youth homicide offender,
        though not a juvenile, violates the Eighth Amendment’s
        (U.S.C.A. 8) prohibition on [“]cruel and unusual punishment”
        for the undisputable reasoning of a youth offender between the
        age of 18 to 25 suffering from the same or similar irresponsible
        characteristics and immature traits as those described in
        association with juvenile offenders.

     4. Entitlement To Equal Protection Rights Must Award
        Similarly Situated Defendants Under U.S.C.A. 8: The
        scientific research that supported the decision in Montgomery
        v. Louisiana, [supra], to make Miller v. Alabama, [supra],
        retroactive, definitely concluded that such scientific/medical
        research substantiating transient immaturity that diminishes
        culpability extends to the age of 25, thereby, entitling a
        defendant who was under the age of 25 when committing
        homicide of the first or second degree to the Equal Protection
        Rights governed under U.S.C.A. 14 and Article 7 of the
        Universal Declaration of Human Rights as well as Due
        Process under U.S.C.A. 5 as a defendant in this regard is
        similarly situated to that of a juvenile concerning immaturity
        research and should therefore be awarded the ”same”
        treatment as a juvenile offender.

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Appellant’s Brief at 3-4 (numbered for ease of disposition).

       We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).      We give no such deference, however, to the court’s legal

conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1).      Appellant’s Petition, filed more than twelve years after his

Judgment of Sentence became final, is facially untimely.

       Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within 60 days of the date the claim could have been presented. 42 Pa.C.S §

9545(b)(2).5

____________________________________________


5 Effective December 24, 2018, Section 9545(b)(2) now provides that “[a]ny
petition invoking an exception . . . shall be filed within one year of the date
the claim could have been presented.”

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      Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(iii), alleging that his sentence is illegal based on newly

recognized constitutional rights under both Alleyne and Miller, which, he

argues, are both retroactive in their application pursuant to Montgomery.

See Appellant’s Brief at 3-4; 42 Pa.C.S. § 9545(b)(1)(iii).

      As long as this court has jurisdiction over the matter, a legality of

sentence issue is reviewable and cannot be waived.         Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).             However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which we

have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999) (“Although 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.”). Appellant filed the instant PCRA Petition on

March 25, 2016, which was within 60 days of the issuance of the Montgomery

decision (decided January 25, 2016).

      To support his Alleyne challenge, Appellant erroneously argues that

Alleyne    announced    a   new    substantive   rule   made    retroactive   by

Montgomery. However, the Pennsylvania Supreme Court has concluded that

the constitutional rule announced in Alleyne is procedural, not substantive,

and unequivocally held that “Alleyne does not apply retroactively to cases

pending on collateral review[.]” Commonwealth v. Washington, 142 A.3d

810, 818-20 (Pa. 2016). Accordingly, Appellant’s reliance on Montgomery


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is misplaced and his Alleyne claim does not fall under the Section §

9545(b)(1)(iii) timeliness exceptions.

      Appellant’s Miller claim also fails. Appellant correctly asserts that the

holding in Montgomery is that the rule announced in Miller, supra, holding

juveniles cannot automatically be sentenced to life in prison without parole, is

substantive for purposes of retroactivity. However, because Appellant was 20

years old at the time he committed the instant murder, Miller is inapplicable.

See Commonwealth v. Lee, ___ A.3d ___, 2019 PA Super 64, *9 (filed

March 1, 2019) (en banc) (holding that appellant, who was over the age of 18

at the time of offense, could not invoke Miller to overcome the PCRA time-

bar); Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating

that the holding in Miller is limited to those offenders who were juveniles at

the time they committed their crimes).      Further, this Court has previously

refused to render relief on the brain science argument that Appellant raises in

his PCRA Petition. See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (rejecting the 19-year-old appellant’s argument based on

neuroscientific theories of brain development that he is entitled to PCRA relief

because he was a “technical juvenile” at the time he committed his crimes).

      In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s Petition as untimely.    The record supports the PCRA




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court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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