J-S28005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

CHARMAINE PFENDER

                           Appellant                       No. 839 WDA 2016


                    Appeal from the PCRA Order May 10, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0008537-1984


BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                    FILED MAY 03, 2017

      Appellant, Charmaine Pfender, appeals from the order entered on May

10, 2016, which dismissed her fourth petition filed pursuant to the Post

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

      Appellant was born on January 18, 1966 and “was 18 years and [six]

months old when the events giving rise to her conviction occurred.”

Appellant’s Brief at 6; Commonwealth’s Information, 8/13/84, at 1. In sum,

on August 7, 1984, Appellant killed one man and shot another; in 1985, a

jury found Appellant guilty of first-degree murder and other offenses.

      On October 25, 1985, the trial court sentenced Appellant to serve a

mandatory term of life in prison, without the possibility of parole, for her

first-degree    murder     conviction   and   to   serve   consecutive   terms   of

imprisonment for her other offenses. On April 4, 1988, this Court “affirm[ed



* Retired Senior Judge assigned to the Superior Court.
J-S28005-17



Appellant’s] judgment of sentence for murder,” but “vacate[d Appellant’s]

judgment of sentence for” the non-homicide charges and remanded the case

for resentencing on the non-homicide charges.              Commonwealth v.

Pfender, 540 A.2d 543, 549 (Pa. Super. 1988). On March 17, 1989, the

trial court resentenced Appellant in accordance with our order and we

affirmed   Appellant’s   judgment   of   sentence   on   December    18,   1989.

Commonwealth v. Pfender, ___ A.2d ___, 543 Pittsburgh 1989 (Pa.

Super. 1989) (unpublished memorandum) at 1-4.            Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

      In the ensuing years, Appellant filed three PCRA petitions, all of which

were dismissed by the PCRA court.        Appellant then filed her current PCRA

petition on March 24, 2016.     The current petition constitutes Appellant’s

fourth PCRA petition – and Appellant filed the current petition over three

years after the dismissal of her third PCRA petition and over 26 years after

her judgment of sentence became final.           Within the current petition,

Appellant relied upon Miller v. Alabama, where the United States Supreme

Court 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.’” Miller v. Alabama, ___ U.S. ___, 132

S.Ct. 2455, 2460 (2012). Appellant claimed that her mandatory sentence of

life in prison without the possibility of parole is unconstitutional under the

Eighth Amendment to the United States Constitution, as interpreted by

Miller.    Specifically, Appellant claimed, her sentence is unconstitutional

                                     -2-
J-S28005-17



because: 1) “her youth at the time of the offense rendered her categorically

less culpable under Miller;” 2) “her experience of extreme childhood and

adolescent abuse rendered her categorically less culpable under Miller;” 3)

“the combined effect of her youth at the time of the offense and her

experience of extreme childhood and adolescent abuse rendered her

categorically less culpable under Miller;” and, 4) “Pennsylvania law

permitting the imposition of mandatory life without parole sentences on 18-

year-olds when such a sentence is now prohibited for 17-year-olds lacks a

rational   basis    and   therefore    violates    the     equal   protection   rights    of

[Appellant] under the [United States] and Pennsylvania [Constitutions].”

Appellant’s Fourth PCRA Petition, 3/24/16, at 2.                   Moreover, Appellant

claimed that her current petition is timely, as she filed the petition within 60

days after the United States Supreme Court decided Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016) and held that the new

substantive rule announced in Miller applied retroactively to cases on

collateral review.    See Montgomery, 136 S.Ct. at 732.

      On April 20, 2016, the PCRA court provided Appellant with notice that

it intended to dismiss her PCRA petition in 20 days, without holding a

hearing, as the petition was untimely.            PCRA Court Order, 4/20/16, at 1;

see also Pa.R.Crim.P. 907(1). In particular, the PCRA court noted that the

petition was untimely because Appellant was not a juvenile at the time she

committed     the    homicide   –     and,   thus,    the    holdings   of   Miller      and

Montgomery did not apply to her case.                Id.    Appellant responded to the

                                          -3-
J-S28005-17



PCRA court’s notice by reiterating her claim that Miller applied, as she was

“barely a legal adult” and, independently, suffered from diminished capacity

when she committed the murder. Appellant’s Response, 5/6/16, at 3 and 8.

Appellant also reiterated her claim that she is entitled to relief under the

equal protection clause, as there is no rational basis for permitting an 18-

year-and-one-day-old murder defendant to receive a mandatory sentence of

life in prison without the possibility of parole – while prohibiting the same

sentence for a 17-year-and-364-day-old defendant. Id. at 10-11. Appellant

requested an evidentiary hearing to support her claims for relief. Id. at 11.

      The PCRA court finally dismissed Appellant’s petition on May 10, 2016

and Appellant filed a timely notice of appeal. Appellant raises five claims to

this Court:

        [1.] Did the PCRA court err in rejecting Appellant’s claim
        that Miller v. [Alabama’s] Constitutional requirement of
        consideration of age-related factors prior to imposing life
        without parole sentences applies to [Appellant] who was
        considered a child under Pennsylvania law and possessed
        those characteristics of youth identified as Constitutionally
        significant for sentencing purposes by the [United States]
        Supreme Court?

        [2.] Did the PCRA court err in rejecting Appellant’s claim
        that the rule of law announced in Miller requires retroactive
        invalidation of a mandatory life without parole sentence
        imposed on an offender with diminished culpability caused
        by extreme childhood physical, psychological, and sexual
        abuse?

        [3.] Did the PCRA court err in rejecting Appellant’s claim
        that the combined effect of [Appellant’s] youth and her
        experience of extreme childhood and adolescent physical,


                                    -4-
J-S28005-17


        psychological, and sexual abuse render her less culpable
        under Miller and therefore require reversal of her sentence?

        [4.] Did the PCRA court err in rejecting Appellant’s claim
        that Pennsylvania law permitting mandatory sentences of
        life without parole for crimes committed by 18-year-olds
        lacks a rational basis given Miller’s prohibition against such
        sentences for offenders aged 17 and younger and therefore
        violates the equal protection clauses of the Pennsylvania
        and [United States] Constitutions?

        [5.] Did the PCRA court abuse its discretion in failing to hold
        an evidentiary hearing where [Appellant] had raised issues
        of material fact that entitle her to relief?

Appellant’s Brief at 4 (internal bolding and some internal capitalization

omitted).

      “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”    Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claims, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition,
        set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have

                                      -5-
J-S28005-17


        been presented. In order to be entitled to the exceptions to
        the PCRA’s one-year filing deadline, the petitioner must
        plead and prove specific facts that demonstrate his claim
        was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      Appellant’s judgment of sentence became final at the end of the day

on January 17, 1990, which was 30 days after this Court affirmed

Appellant’s judgment of sentence and the time for filing a petition for

allowance of appeal with our Supreme Court expired.          See 42 Pa.C.S.A.

§ 9545(b)(3) (“A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States . . .

, or at the expiration of time for seeking the review”); see also Pa.R.A.P.

1113(a).   The PCRA explicitly requires that a petition be filed “within one

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

As such, Appellant had until January 17, 1991 to file a timely PCRA petition.

Since Appellant filed her current petition on March 24, 2016, the current

petition is patently untimely and the burden thus fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time-bar

applied to her case.   See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a

statutory exception to the one-year time-bar, the PCRA demands that the

petitioner properly plead and prove all required elements of the relied-upon

exception).



                                     -6-
J-S28005-17


     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:


        (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:

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).

     As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a
        “new” constitutional right and that the right “has been held”
        by that court to apply retroactively. The language “has
        been held” is in the past tense. These words mean that the
        action has already occurred, i.e., “that court” has already
        held the new constitutional right to be retroactive to cases
        on collateral review. By employing the past tense in writing
        this provision, the legislature clearly intended that the right
        was already recognized at the time the petition was filed.



                                     -7-
J-S28005-17



Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

       Within Appellant’s PCRA petition, Appellant claims that her sentence is

unconstitutional and subject to correction based on the holding of Miller v.

Alabama. Appellant also claims that her petition is timely, as she filed her

petition within 60 days of the date the United States Supreme Court decided

Montgomery v. Louisiana and held that the new substantive rule

announced in Miller applied retroactively to cases on collateral review.   See

Montgomery, 136 S.Ct. at 732.

       We agree that Appellant filed her petition within 60 days after the

Supreme Court decided Montgomery and that, in Montgomery, the

Supreme Court held that the new rule of law announced in Miller applies

retroactively to cases on collateral review.1 See Montgomery, 136 S.Ct. at

732. Thus, if the right announced in Miller applies to Appellant’s claim or


____________________________________________


1
  The United States Supreme Court decided Montgomery on January 25,
2016. Appellant filed the current petition on March 24, 2016, which was 59
days after the Supreme Court decided Montgomery.



                                           -8-
J-S28005-17



claims, the petition is timely as to that specific claim. See Abdul-Salaam,

812 A.2d at 501-502 (“[a] ruling concerning the retroactive application of

[a] new constitutional right must be made prior to the filing of the petition

for collateral relief”); see also Commonwealth v. Porter, 35 A.3d 4, 13-

14 (Pa. 2012) (“the[] provisions [in 42 Pa.C.S.A. § 9545(b)(1) and (2)

(relating to the PCRA’s time-bar exceptions)] are claim-specific, as they

would have to be, given the [60-]day restriction”). However, we conclude

that, since Appellant was over 18-years-old when she committed the

murder, Miller does not apply to her case; as such, Appellant’s petition is

untimely and the PCRA court properly dismissed the petition.      To be sure,

this Court has already issued controlling precedent on every claim that

Appellant brings to this Court.

      We will consider Appellant’s first three claims together. As Appellant

claims, her youth at the time of the murder, the characteristics of youth she

possessed at the time, and her “experience of extreme childhood and

adolescent physical, psychological, and sexual abuse” – individually and as

combined – “render her less culpable under Miller” and require the

invalidation of her mandatory sentence of life in prison without the

possibility of parole.   See Appellant’s Brief at 11-34.   This Court does not

have jurisdiction to consider the merits of Appellant’s claims.

      Appellant’s claims rest upon the premise that this Court must look

beyond Miller’s categorical holding that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth

                                      -9-
J-S28005-17



Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132

S.Ct. at 2460.    According to Appellant, this Court must look to Miller’s

reasoning – and to its recognition that “youth is more than a chronological

fact” and that juveniles have a “lessened culpability” and a greater “capacity

for change.”     Id. at 2461 and 2467 (internal citations, quotations, and

corrections omitted); see also Appellant’s Brief at 11-34. Appellant claims

that Miller’s actual holding eschews a categorical, age-based cut-off and,

instead, prohibits mandatory sentences of life in prison without the

possibility of parole for all individuals who possess the “mitigating attributes

of youth” and for all individuals who “suffer[] from severe hardship and

abuse.” See Appellant’s Brief at 11-34.

      At the outset, Appellant has overstated Miller’s holding.        Miller’s

holding was simply (and explicitly) 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.’”

Miller, 132 S.Ct. at 2460 (emphasis added).            To be sure, we have

recognized this fact.   Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (“[t]he Miller decision applies to only those defendants who

were under the age of 18 at the time of their crimes”) (internal quotations

and citations omitted).    Thus, the entire basis for Appellant’s first three

claims on appeal is unsound and not supported by the law or our controlling

precedent.




                                     - 10 -
J-S28005-17



     What Appellant really asks this Court to do is extend Miller’s holding,

so that it encompasses individuals who were 18 years old or older at the

time of their crimes, but who possessed the “mitigating attributes of youth”

and who “suffered from severe hardship and abuse.” See Appellant’s Brief

at 11-34.   We have rejected this argument in two prior opinions and we

reject the argument here. Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa. Super. 2013) (“[a]ppellants . . . contend that 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, it would be a violation of

equal protection for the courts to treat them or anyone else with an

immature brain, as adults. Thus, they conclude that the holding in Miller

should be extended to them as they were under the age of 25 at the time of

the murder and, as such, had immature brains.        However, we need not

reach the merits of [a]ppellants’ argument, as their 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)”) (emphasis

in original); Furgess, 149 A.3d at 94 (“[a]ppellant argues that he [] may

invoke Miller because he was a ‘technical juvenile,’ and he relies on

neuroscientific theories regarding immature brain development to support

his claim that he is eligible for relief.   But, rather than presenting an

argument that is within the scope of the Miller decision, this argument by

                                   - 11 -
J-S28005-17



[a]ppellant seeks an extension of Miller to persons convicted of murder

who were older at the time of their crimes than the class of defendants

subject to the Miller holding. . . .    We rejected reliance on this same

argument for purposes of Section 9545(b)(1)(iii) in [Cintora]. . . . Cintora

remains controlling on this issue, and [a]ppellant’s assertion of the time-bar

exception at Section 9545[(b)(1)(iii)] must be rejected”) (emphasis in

original).

      Put simply, the newly-recognized constitutional right exception to the

PCRA’s one-year time-bar applies only to the specific “right” the Supreme

Court recognized – and not to an extension of the right, based upon the

underlying reasoning contained within the Supreme Court’s opinion.         42

Pa.C.S.A. § 9545(b)(1)(iii) (“[a]ny 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 . . . 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”) (emphasis added). Since the right

recognized in Miller was 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’” – and, since Appellant was

older than 18 at the time she committed the murder, Miller does not apply




                                    - 12 -
J-S28005-17



to her case. Miller, 132 S.Ct. at 2460. We thus do not have jurisdiction to

consider the merits of Appellant’s first three issues on appeal.

      For   Appellant’s   fourth   issue   on    appeal,   Appellant   claims   that

“Pennsylvania law permitting mandatory sentences of life without parole for

crimes committed by 18-year-olds lacks a rational basis given Miller’s

prohibition against such sentences for offenders aged 17 and younger and

therefore violates the equal protection clauses of the Pennsylvania and

[United States] Constitutions.” Appellant’s Brief at 34-36. Again, this Court

has already held that we do not have jurisdiction to consider the merits of

this claim. Cintora, 69 A.3d at 764 (“[a]ppellants’ third issue, of ‘whether

mandatory life without parole terms for adults in homicide case violates

state and federal equal protection clauses as well as article 7 of the universal

declaration of human rights,’ likewise does not merit our review, as it too

cannot evade the timeliness requirements of the PCRA”).

      Moreover, Appellant’s claim fails under the plain language of Section

9545(b)(1)(iii), as Appellant’s equal protection claim, again, seeks an

extension of the right recognized in Miller and is merely utilizing Miller to

derive another constitutional right.            Simply stated, Appellant’s equal

protection claim does not assert that she is entitled to relief under the actual

right that Miller recognized and, thus, Appellant’s claim does not fall under

the newly-recognized constitutional right exception to the PCRA’s time-bar.

See 42 Pa.C.S.A. § 9545(b)(1)(iii) (“[a]ny petition under this subchapter,

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

                                      - 13 -
J-S28005-17



the date the judgment becomes final, unless the petition alleges and the

petitioner proves that . . . 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”) (emphasis added).

      Finally, Appellant claims that the PCRA court erred when it dismissed

her fourth PCRA petition without holding a hearing. This claim is meritless.

Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008) (“[a]ppellant’s

petition was untimely, and accordingly the PCRA court properly determined

that it had no jurisdiction to entertain it. We therefore also must conclude

that the PCRA court did not err in dismissing [a]ppellant’s petition without a

hearing”).

      To conclude, Appellant's PCRA petition is manifestly untimely and

Appellant did not properly plead any of the statutory exceptions to the one-

year time-bar. Therefore, neither the PCRA court nor this Court has subject

matter jurisdiction to consider the merits of Appellant's claims.    The PCRA

court thus did not err when it dismissed Appellant's petition without holding

a hearing.    Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super.

2011); Pa.R.Crim.P. 907(1).

      Order affirmed. Jurisdiction relinquished.




                                    - 14 -
J-S28005-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2017




                          - 15 -
