J-S59010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHEENA KING,

                            Appellant                 No. 3491 EDA 2016


             Appeal from the PCRA Order Entered October 25, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0400411-1992


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 07, 2017

        Appellant, Sheena King, appeals pro se from the post-conviction

court’s October 25, 2016 order denying, as untimely, her third petition under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        This Court previously summarized the facts and procedural history of

Appellant’s case, as follows:

        In May 1991, Appellant, at the request of her then boyfriend,
        killed Shawn Wilder by firing five gunshots into Wilder’s face and
        neck. Appellant then fled the Philadelphia area briefly, but
        returned and was arrested in connection with the murder.
        Appellant confessed to killing Wilder, but claimed that she did so
        only because her boyfriend threatened to kill her and her family
        if she did not follow his instructions. Following a bench trial,
        Appellant was convicted of first-degree murder, burglary,
        criminal conspiracy, and possessing an instrument of crime. The
        court subsequently sentenced Appellant to a term of life
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      imprisonment[, without the possibility of parole (“LWOP”),] on
      the murder conviction, with concurrent terms of five to ten
      years’ incarceration on the burglary and conspiracy convictions,
      and one to two years’ imprisonment on the possession of an
      instrument of crime conviction. Appellant filed a direct appeal of
      her judgment of sentence, claiming that the verdict was against
      the weight of the evidence and that the evidence was insufficient
      to support her conviction for first-degree murder. This Court
      concluded that Appellant had waived all her claims on appeal
      and affirmed the judgment of sentence. Commonwealth v.
      King, 663 A.2d 250 (Pa. Super. 1995) (unpublished
      memorandum). [Appellant did not file an allowance of appeal
      with our Supreme Court.]

Commonwealth v.        King,   No.   4876   Philadelphia   1997,   unpublished

memorandum at 1-2 (Pa. Super. filed Aug. 27, 1999) (disposing of

Appellant’s appeal from the denial of her first PCRA petition, discussed

infra).

      On January 16, 1997, Appellant filed a pro se PCRA petition and

counsel was appointed. On October 20, 1997, the PCRA court denied that

petition and, on appeal, this Court affirmed.   See King, supra, No. 4876

Philadelphia 1997. On May 26, 2004, Appellant filed a second, pro se PCRA

petition. That petition was also dismissed and, after this Court affirmed on

appeal, our Supreme Court denied Appellant’s petition for allowance of

appeal.   Commonwealth v. King, 894 A.2d 819 (Pa. Super. 2005)

(unpublished memorandum), appeal denied, 903 A.2d 537 (Pa. 2006).

      On August 8, 2012, Appellant filed her third, pro se PCRA petition,

which underlies the present appeal. She also filed an amended petition on

March 10, 2016. On April 20, 2016, the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to dismiss Appellant’s petition, to which she


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submitted a timely, pro se response.      However, on October 25, 2016, the

PCRA court issued an order dismissing Appellant’s petition as being untimely

filed.

         Appellant then filed a timely, pro se notice of appeal, as well as a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On

January 26, 2017, the PCRA court issued a Rule 1925(a) opinion.        Herein,

Appellant presents the following three questions for our review, which we

reproduce verbatim:

         A. Did Petitioner timely file a PCRA and thus it should not have
            been dismissed as Untimely wiithout an evidentiary hearing
            on the merits?

         B. Did Court of Common Pleas err in determining that Graham v
            Florida, Montgomery v Louisiana, and People v House did not
            apply to Petitioner?

         C. Does Graham v Florida and People v House apply to Petitioner
            whose culpability is questionable when age, history of abuse,
            extreme duress, and diminished capacity are considered
            according to recent neuroscience in abovementioned cases
            and additional cases under review?

Appellant’s Brief at 2.

         This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d


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1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on September

26, 1999, at the expiration of the thirty-day time-period for filing a petition

for allowance of appeal with our Supreme Court.            See 42 Pa.C.S. §

9545(b)(3) (directing that a judgment of sentence becomes final at the



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conclusion of direct review or the expiration of the time for seeking the

review); Pa.R.A.P. 1113(a) (stating, “a petition for allowance of appeal shall

be filed with the Prothonotary of the Supreme Court within 30 days of the

entry of the order of the Superior Court sought to be reviewed”).                  Thus,

Appellant’s current petition filed in August of 2012 is patently untimely and,

for this Court to have jurisdiction to review the merits thereof, she must

prove that she meets one of the exceptions to the timeliness requirements

set forth in 42 Pa.C.S. § 9545(b).

        Instantly, Appellant does not specifically identify which timeliness

exception she is attempting to meet.           However, she seems to be arguing

that    she     satisfies   the   ‘new   retroactive   right’   exception   of    section

9545(b)(1)(iii). Specifically, Appellant contends that her LWOP sentence is

unconstitutional under the rationale of various decisions by the United States

Supreme Court, including Graham v. Florida, 560 U.S. 48 (2010) (holding

that the imposition of a sentence of life imprisonment without the possibility

of     parole    on   juvenile    non-homicide    offenders     violates    the   Eighth

Amendment’s prohibition on cruel and unusual punishment), Roper v.

Simmons, 543 U.S. 551 (2005) (holding that subjecting juveniles under the

age of 18 to the death penalty violates the Eighth Amendment), and Miller

v. Alabama, 567 U.S. 460, 479 (2012) (holding “that the Eighth

Amendment forbids a sentencing scheme that mandates life in prison

without the possibility of parole for juvenile offenders”).




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      Notably, Appellant concedes that she was 18 at the time she

committed the murder for which she is serving her LWOP sentence.

Appellant’s Brief at 8.     Nevertheless, she contends that the rationale

underlying the Roper, Graham, and Miller decisions should be extended to

her case because at the time of the murder, she had the same cognitive

functioning as someone under the age of 18, and her “history of abuse,

incest, sexual abuse, and subsequent diagnosis of a mental disorder further

impeded [her] brain’s development[,]” such that her LWOP sentence

constitutes cruel and unusual punishment. Id. at 19.

      This Court previously rejected a similar argument in Commonwealth

v. Chambers, 35 A.3d 34 (Pa. Super. 2011), stressing that “[f]or purposes

of deciding whether the timeliness exception to the PCRA based on the

creation of a new constitutional right is applicable, the distinction between

the holding of a case and its rationale is crucial since only a precise

creation of a constitutional right can afford a petitioner relief.”   Id. at 42

(emphasis added). Examining, then, the holdings of Roper and Graham, it

is clear that neither case warrants sentencing relief for Appellant.     Again,

Graham held that LWOP sentences for non-homicide juvenile offenders

violates the Eighth Amendment, and Roper held that imposing the death

penalty on juvenile defendants constitutes cruel and unusual punishment.

In this case, Appellant not only was an adult at the time of her crimes, but

she was also convicted of murder, and received an LWOP sentence for that




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offense; consequently, the holdings of Graham and Roper do not apply to

her case.1

       For the same reason, Appellant also cannot rely on Miller to meet the

timeliness exception of section 9545(b)(1)(iii). Miller held that the Eighth

Amendment precludes the mandatory imposition of an LWOP sentencing on

a juvenile offender. Miller, 567 U.S. at 479. “The Miller decision applies

only to those defendants who were ‘under the age of 18 at the time of their

crimes.’” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016)

(quoting Miller, 567 U.S. at 465).             Because Appellant was 18 years old

when she murdered the victim in this case, she cannot rely on Miller, or the

rationale expressed therein, to satisfy the timeliness exception of section

9545(b)(1)(iii).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017

____________________________________________


1 Moreover, we point out that even if Graham or Roper did apply to
invalidate Appellant’s LWOP sentence, she cannot satisfy the 60-day
requirement of section 9545(b)(2), as she filed her current petition several
years after those decisions were filed.



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