J-S93027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VINCENT D. SPENCER

                            Appellant                 No. 446 EDA 2016


              Appeal from the PCRA Order dated January 15, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0722561-1986


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                        FILED FEBRUARY 23, 2017

        Appellant, Vincent D. Spencer, appeals from the order dismissing his

fourth Post Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant

contends that although he was thirty-one years old when he committed

second-degree murder (among other crimes), he is entitled to relief under

Miller v. Alabama, 132 S. Ct. 2455 (June 25, 2012) (prohibiting juveniles

from being sentenced to life without parole), and Montgomery v.

Louisiana, 136 S. Ct. 718 (Jan. 25, 2016) (holding that Miller applies

retroactively).    He also contends all prior trial, direct appeal, and PCRA

counsel were ineffective. We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      We repeat the facts and procedural history that were set forth by this

Court in resolving Appellant’s first PCRA petition, which was filed on

February 24, 1992:

      On February 3, 1988, appellant was convicted by a jury of
      second degree murder, robbery, burglary, and possessing an
      instrument of crime. Sandra Palmer Mitchell, the victim’s
      girlfriend, was an eye witness to the crime and testified as
      follows. On June 15, 1986, the victim, Charles Miller, had two
      arguments with a man whose nickname was Jingles. The
      arguments transpired just outside Mr. Miller’s apartment. Ms.
      Mitchell did not see Jingles during the arguments but heard his
      voice. Shortly thereafter, appellant broke into Miller’s apartment,
      confronted the victim, and demanded money. Ms. Mitchell
      immediately recognized appellant’s voice as that of the individual
      who had argued with Mr. Miller earlier. Mr. Miller struggled with
      appellant and was shot to death. Ms. Mitchell was shown a
      photographic     array   containing    appellant’s    picture  and
      immediately identified him as the assailant.

            Following the trial, appellant was sentenced to life
      imprisonment [on February 3, 1988]. We affirmed on direct
      appeal, Commonwealth v. Spencer, 397 Pa. Super. 647, 571
      A.2d 506 (1989), and the Supreme Court denied further review.
      Commonwealth v. Spencer, 525 Pa. 645, 581 A.2d 571
      (1990).

Commonwealth v. Spencer, No. 1442 Philadelphia 1994, at 1-2 (Pa.

Super., Mar. 10, 1995). This Court ultimately denied Appellant relief on his

claims that, among other things, counsel was ineffective by preventing him

from testifying at trial and failing to present the testimony of alibi witnesses.

Id. at 2-3.




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        Appellant filed his second PCRA petition on January 8, 1997, which the

PCRA court dismissed as untimely.2 This Court affirmed the dismissal on July

16, 1998.     Commonwealth v. Spencer, No. 2708 Philadelphia 1997 (Pa.

Super., July 16, 1998), allocatur denied, 416 E.D. Alloc. 1998, 1999 WL

165709 (Pa., Mar. 26, 1999).

        The PCRA court docketed Appellant’s third PCRA petition on April 25,

2007.     The PCRA court, on October 16, 2008, dismissed this petition as

untimely. Appellant did not appeal.

        On August 13, 2012, Appellant filed this pro se PCRA petition, his

fourth. On November 17, 2015, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss.3       Appellant did not file a response, and the

PCRA court dismissed the petition as untimely on January 15, 2016.4            On

February 7, 2016, Appellant filed a counseled notice of appeal, and the PCRA

court did not issue a Pa.R.A.P. 1925(b) order.

____________________________________________


2
  “The 1995 PCRA amendments provided for a ‘transitional, statutory grace
period’ of one year, applicable to first petitions in cases where the judgment
of sentence became final before the January 16, 1996 effective date of the
1995 amendments. Thus, in such an instance, a PCRA petition is timely if it
was filed no later than January 16, 1997.” Commonwealth v. Robinson,
837 A.2d 1157, 1158 n.3 (Pa. 2003) (citation omitted and emphasis added).
3
  The record does not reveal the reason for the considerable delay in
disposition.
4
  As discussed below, Montgomery v. Louisiana was issued by the U.S.
Supreme Court on January 25, 2016, between the PCRA court’s dismissal
and the date Appellant filed his notice of appeal.



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      Appellant raises two issues:

      Whether the trial court erred in denying appellant’s PCRA
      petition where he indicated that he was entitled to relief
      pursuant to the rulings in the United States Supreme Court
      cases of Miller v. Alabama and Montgomery v. Louisiana.

      Whether all counsel, trial, direct appeal and PCRA were
      ineffective and whether appellant can obtain relief from such
      ineffectiveness where although the instant Petition was filed
      outside the one year time limitation, the Holding in McQuiggin
      v. Perkins and Martinez v. Ryan would apply to his case
      where his PCRA Petition was pending when McQuiggin was
      decided and the trial court did not file a 1925(b) order.

Appellant’s Brief at 11.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”         Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super.) (en banc) (citation omitted),

appeal denied, 839 A.2d 352 (Pa., Dec. 1, 2003).

      On appeal, Appellant contends that although he was thirty-one when

he   committed   the   crimes   in   question,   Miller,   which   was   held   by

Montgomery to be retroactively applicable to cases on collateral review,

should apply to his case. He attacks the mandatory nature of a life-without-

parole sentence for second-degree murder and posits that the mental age of

the defendant should govern whether a life sentence should be imposed. His

argument, we hold, even if preserved, lacks merit.

      As our Supreme Court has explained:




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        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions. We have also held
        that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e] Court will
        consider the issue sua sponte, as it is a threshold question
        implicating our subject matter jurisdiction and ability to
        grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).         The three

exceptions to the general one-year time limitation are:

        (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).




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      Instantly, Appellant filed his petition on August 13, 2012, within sixty

days of the Miller decision, but over three years prior to the Montgomery

decision. And the PCRA court dismissed Appellant’s petition on January 15,

2016, just ten days before the Supreme Court decided Montgomery. Thus,

neither Appellant nor the PCRA court could have known of, let alone

addressed, the import of Montgomery.

      We need not quibble with whether Appellant’s argument has been

preserved, however, because neither Miller nor Montgomery apply to

Appellant. The only exception to the time-bar in Section 9545(b) that could

be applicable here is Section 9545(b)(1)(iii), relating to assertion of a newly-

recognized constitutional right — namely, the right of a juvenile under Miller

not to be sentenced to life without parole.     Appellant does not qualify for

application of that right because he was not a juvenile when he committed

the murder; rather, he was thirty-one years old. See Miller, 132 S. Ct. at

2460 (holding only that mandatory life without parole sentences for

individuals   under     eighteen    at   the   time   of   their   crimes   are

unconstitutional); Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa.

Super. 2016) (non-juvenile petitioners “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 in Section

9545(b)(1)(iii)”).   Appellant’s exhortations that the holdings of Miller and

Montgomery should be construed to include adult defendants who were


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under the mental age of eighteen when they committed the offenses at issue

lack support — nothing in those decisions provides that they may be applied

to a person physically eighteen years or older who has a “mental age” of less

than eighteen.

     Appellant also attempts to invoke a timeliness exception based on

McQuiggin v. Perkins, 133 S. Ct. 1924 (May 28, 2013), and Martinez v.

Ryan, 132 S. Ct. 1309 (Mar. 20, 2012). Initially, Appellant failed to invoke

McQuiggin or Martinez in his petition. Indeed, Appellant filed his petition

on August 13, 2012, well before McQuiggin was issued.        Thus, Appellant

cannot raise either for the first time on appeal.   See generally Pa.R.A.P.

302. Regardless, both McQuiggin and Martinez are inapposite.

     In McQuiggin, “the United States Supreme Court held that petitioners

who assert a convincing actual innocence claim may thereby invoke the

miscarriage of justice exception to overcome the federal habeas corpus

statute of limitations.” Commonwealth v. Brown, 143 A.3d 418, 420 (Pa.

Super. 2016) (summarizing McQuiggin, supra).          This Court in Brown

explained, however, that federal “decisions pertaining to federal habeas

corpus law[, such as McQuiggin, are] irrelevant to our construction of the

timeliness provisions set forth in the PCRA.” Id. at 420-21 (emphasis

added).

     In Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016), our

Supreme Court addressed the import of Martinez. In Martinez, “the High


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Court altered the federal law of procedural default to allow post-conviction

petitioners to have their waived claims of trial counsel ineffectiveness

reviewed in federal habeas corpus proceedings where post-conviction

counsel never raised such claims.”    Robinson, 139 A.3d at 183 (footnote

omitted) (summarizing holdings of Martinez, supra, and Trevino v.

Thaler, 133 S. Ct. 1911 (2013)).      The defendant in Robinson urged the

Court to permit him to challenge counsel’s effectiveness “for the first time in

an otherwise untimely filed PCRA petition,” Robinson, 139 A.3d at 184, by

creating an equitable exception to the PCRA’s timeliness requirements. The

Supreme Court declined, reasoning, inter alia, that the defendant’s

      proposed change in procedure would be in direct contravention
      of the legislatively created time-bar of the PCRA and the limited
      statutory exceptions provided therein. This Court has no
      authority to carve out equitable exceptions to statutory
      provisions and the federal jurisprudence cited by [the defendant]
      neither requires nor authorizes our doing so.

Id. at 187. Thus, Pennsylvania courts have declined to construe McQuiggin

and Martinez as creating additional exceptions to the PCRA’s timeliness

requirements.    Because the PCRA court did not err in concluding that

Appellant failed to plead and prove any of the exceptions to the PCRA’s

timeliness requirements, it properly dismissed Appellant’s petition and did

not have to address his ineffectiveness claims.    See Wilson, 824 A.3d at

833. Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




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