J-S95029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JORGE GEORGE FRATICELLI

                            Appellant                     No. 1997 EDA 2016


                   Appeal from the PCRA Order May 25, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004827-1994


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                                  FILED MAY 23, 2017

       Jorge George Fraticelli appeals from the May 25, 2016 order entered in

the Delaware County Court of Common Pleas dismissing as untimely his

petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

We affirm.

       On July 18, 1995, a jury convicted Fraticelli of second-degree murder,

robbery, conspiracy, and firearms not to be carried without a license. 1 On

September 26, 1995, the trial court sentenced Fraticelli to life imprisonment

for the second-degree murder conviction, a concurrent term of 6 to 24

months’ imprisonment for the conviction for firearms not to be carried


____________________________________________


       1
         18 Pa.C.S.         §§   2502,    3701(a)(2),   903(a)(1),   and   6106(a),
respectively.
J-S95029-16



without a license, and a concurrent term of 36 to 72 months’ imprisonment

for the conspiracy conviction. On November 3, 1997, this Court affirmed the

judgment of sentence. On July 30, 1998, the Pennsylvania Supreme Court

denied his petition for allowance of appeal.

       Fraticelli then filed numerous petitions in state and federal court

seeking post-conviction relief, all of which were denied.

       On February 25, 2016, Fraticelli filed the instant PCRA petition alleging

that he was entitled to relief pursuant to Miller v. Alabama, 132 S.Ct. 2455

(2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). On March

9, 2016, the PCRA court issued a notice of intent to dismiss the PCRA

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907, and, on May 25, 2016,2 it dismissed the petition as untimely.

On June 24, 2016, Fraticelli filed a timely notice of appeal.

       On appeal, Fraticelli raises the following issue for our review:

           1. Whether [Fraticelli’s] Instant PCRA Petition Predicated
           Upon The United States Supreme Court’s Decision
           Announced In Miller v. Alabama, 567 U.S. (2012), Is
           Timely Filed Under The Purview Of 42 Pa.C.S.
           §9545(b)(1)(iii)?

           II. Whether The Court’s Imposition Of An Illegal Mandatory
           Life Without Parole Sentence, For A Homicide Offense
           Committed While [Fraticelli] Was A Juvenile, Violates The
____________________________________________


       2
       Although the order dismissing the PCRA petition was dated May 24,
2016, the docket states it was not served on the parties until May 25, 2016.
See Pa.R.A.P. 108(a)(1) (stating that day of entry shall be day clerk of court
mailed copies of order to parties).



                                           -2-
J-S95029-16


          Eighth Amendment’s Prohibition On “Cruel And Unusual
          Punishments,’” As A Result Of:

             (A). Miller’s Application Being Binding Upon All
             States;

             (B). Appellant Is A Juvenile Under Pennsylvania Law;
             And

             (C). Equal Protection Demands Miller's Application.

Fraticelli’s Br. at 2.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).         A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”         42 Pa.C.S. § 9545(b)(1).      A

judgment is 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 time for seeking the review.”        42

Pa.C.S. § 9545(b)(3).

      This Court affirmed Fraticelli’s judgement of sentence on November 3,

1997, and the Supreme Court denied allowance of appeal on July 30, 1998.

Therefore, as Fraticelli concedes, his current PCRA petition filed on February

25, 2016 is facially untimely.


                                     -3-
J-S95029-16



        Fraticelli’s petition remains untimely unless it alleges and proves a

PCRA time-bar exception. Courts may consider a PCRA petition filed more

than one year after a judgment of sentence became final only if the

petitioner alleges and proves one of the following three statutory 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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

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

§ 9545(b)(2).

        Fraticelli argues that his petition was timely because he asserted a

constitutional right that was held to apply retroactively. Fraticelli relies on

the United States Supreme Court’s decisions in Miller and Montgomery. In

Miller, the Supreme Court held that a sentence of life imprisonment without

the possibility of parole was unconstitutional when imposed upon defendants

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

2460.    In Montgomery, the Supreme Court held that its Miller decision

                                      -4-
J-S95029-16



applied retroactively to cases on state collateral review. Montgomery, 136

S.Ct. at 732.

       Fraticelli was 18 at the time he committed the murder for which he

was convicted.3 We have held that Miller’s prohibition of life without parole

sentences does not apply to those who were 18 or older at the time of the

offense.4    See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.

____________________________________________


       3
       Fraticelli was born on February 28, 1976 and committed the offenses
on December 12, 1994.
       4
        Fraticelli relies on the definition of “minor” contained in the Statutory
Construction Act of 1972 and the definition of “child” contained in the
Juvenile Act to support his contention that Miller should apply to him.

       The Statutory Construction Act of 1972 provides: “word and phrases,
when used in any statute finally enacted on or after September 1, 1937,
unless the context clearly indicates otherwise, shall have the meanings given
to them in this section: . . . “Minor.” An individual under the age of 21
years.” 1 Pa.C.S. § 1991. Further, the Juvenile Act provides the following
definition:

            “Child.” An individual who:

            (1) is under the age of 18 years;

            (2) is under the age of 21 years who committed an act of
            delinquency before reaching the age of 18 years; or

            (3) is under the age of 21 years and was adjudicated
            dependent before reaching the age of 18 years, who has
            requested the court to retain jurisdiction and who remains
            under the jurisdiction of the court as a dependent child
            because the court has determined that the child is:

              (i) completing secondary education or an equivalent
              credential;
(Footnote Continued Next Page)


                                           -5-
J-S95029-16



2013) (concluding that, for appellants, who were 19 and 21 at time of

offense, “the holding in Miller does not create a newly-recognized

constitutional right that can serve as the basis for relief”); 5 see also

Commonwealth            v.   Furgess,      149    A.3d   90,   94    (Pa.Super.   2016)
                       _______________________
(Footnote Continued)

             (ii) enrolled in an institution which                  provides
             postsecondary or vocational education;

             (iii) participating in a program actively designed to
             promote or remove barriers to employment;

             (iv) employed for at least 80 hours per month; or

             (v) incapable of doing any of the activities described
             in subparagraph (i), (ii), (iii) or (iv) due to a medical
             or behavioral health condition, which is supported by
             regularly updated information in the permanency
             plan of the child.

42 Pa.C.S. § 6302. We have found no cases applying these statutes to
determine whether Miller applies to a particular defendant. In addition, the
Statutory Construction Act is inapplicable because we are applying case law,
not a statute, and it is clear Miller applies only those under the age of 18.
Further, Fraticelli did not “commit[] an act of delinquency before reaching
the age of 18” and was not adjudicated dependent before reaching the age
of 18. See 42 Pa.C.S. § 6302.
      5
        In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to deny them relief pursuant to
Miller. The appellants had argued that Miller should apply to defendants
under the age of 25 “because Miller created a new Eighth Amendment right,
that those whose brains were not fully developed at the time of their crimes
are free from mandatory life without parole sentences, and because research
indicates that the human mind does not fully develop or mature until the age
of 25.” 69 A.3d at 764. The Court noted that the appellants’ “contention
that a newly-recognized constitutional right should be extended to others
does not render their petition timely pursuant to section 9545(b)(1)(iii).”
Id. (emphasis in original).




                                            -6-
J-S95029-16



(reaffirming Cintora’s holding that petitioners who were 18 or older “at the

time they committed murder are not within the ambit of the Miller decision

and therefore may not rely on that decision to bring themselves within the

time-bar exception”).6

       In sum, because Fraticelli was 18 at the time of the offense, Miller

does not apply, and Fraticelli has failed to satisfy the new constitutional right

exception to the PCRA time-bar. Therefore, we conclude the PCRA court did

not err in dismissing the petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




____________________________________________


       6
       This Court has, at times, stated that petitioners who were “older than
18” were not entitled to relief. See Furgess, 149 A.3d at 94. However, the
Supreme Court in Miller held “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.’” We will not
extend this holding to those who were the age of 18 at the time of the
offense.



                                           -7-
J-S95029-16




              -8-
