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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELVIN WHITE,                              :
                                               :
                       Appellant               :   No. 3162 EDA 2018

           Appeal from the PCRA Order Entered September 21, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1106081-1979


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 21, 2019

        Melvin White appeals, pro se, from the order entered September 21,

2018, in the Court of Common Pleas of Philadelphia County denying, without

a hearing, his third petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 In this timely appeal, White claims the PCRA court erred in: (1)

denying scientific evidence regarding brain science as meritless; and (2)

failing to apply the United States Supreme Court’s decisions in Miller v.




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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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Alabama, 567 U.S. 460 (2012),2 and Montgomery v. Louisiana, ––– U.S.

––––, 136 S.Ct. 718 (2016).3 After a thorough review of the parties’ briefs,

certified record, relevant law, we affirm.4

       We briefly summarize the facts and procedural history as follows. On

October 29, 1979, when White was 23 years old, he and a co-defendant

decapitated White’s common-law wife in front of their two young children,

then displayed the severed head to the police. On April 4, 1983, a jury found

White guilty of first-degree murder. The trial court sentenced White to life

imprisonment for the murder conviction. This Court affirmed the judgment of


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2The Miller Court held that mandatory sentences of life imprisonment without
parole for minors were unconstitutional, due to the immaturity of a minor’s
brain development.

3 The Montgomery Court held that the Miller decision was entitled to
retroactive application on collateral review.

4 White appears to assert the PCRA court erred in not granting his request for
an extension of time to file a response to the Pa.R.Crim.P. 907 notice.
However, for the reasons discussed below, we find the claim does not merit
relief. This Court has held the “failure to issue Rule 907 notice is not reversible
error where the record is clear that the petition is untimely.” Commonwealth
v. Zeigler, 148 A.3d 849, 852 n.2 (Pa. Super. 2016). Given this, we fail to
see how the failure to grant an extension of time to file a response to a Rule
907 notice in a case where the PCRA petition is plainly untimely is reversible
error. Moreover, our review of White’s brief demonstrates that his proposed
response was merely a reiteration of his contention that Miller/Montgomery
should apply to him, a declaration that we will discuss in detail below. Further,
White argues the PCRA court erred in not ordering him to file a Pa.R.A.P.
1925(b) statement; this averment lacks merit because the PCRA court is not
required to issue such an order. See Pa.R.A.P. 1925(b).




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sentence on March 29, 1985. Commonwealth v. White, 494 A.2d 487 (Pa.

Super. 1985). The Pennsylvania Supreme Court denied allocatur on July 25,

1985. White subsequently filed two PCRA petitions.

        On March 29, 2016, White filed the instant PCRA petition, his third,

claiming although he was 23 years old at the time of his wife’s murder, and

although Miller only applies to those defendants who were under the age of

18 at the time of the crime, he should be entitled to relief because

scientifically, his brain was not fully developed. On January 26, 2017, White

filed an amended PCRA petition. On August 20, 2018, the PCRA court issued

a Rule 907 notice of intent to dismiss. On September 7, 2018, White filed a

motion for extension of time to file a response to the Rule 907 notice, upon

which the court did not rule.5          On September 21, 2018, the PCRA court

dismissed the petition as untimely filed. On October 19, 2018, White filed the

instant, timely appeal. The PCRA court did not order White to file a concise

statement. On October 19, 2018, the PCRA court issued an opinion.

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that White’s petition was untimely. We agree. A petitioner must



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5   On September 25, 2018, White file a response to the Rule 907 notice.

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file a PCRA petition within one year of the date the underlying judgment

becomes final. See 42 Pa.C.S. § 9545(b)(1).

       The PCRA timeliness requirement, however, is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

       White’s judgment of sentence became final on September 25, 1985, 90

days after the Pennsylvania Supreme Court denied his petition for allowance

of appeal and the time for filing a petition for writ of certiorari before the

United States Supreme Court expired. See U.S.Sup.Ct. Rule 13; 42 Pa.C.S.A.

§ 9545(b)(3). Therefore, he had until September 25, 1986, to file a timely

PCRA petition.6 The one before us, filed March 29, 2016,7 is patently untimely.

       Nevertheless, we may still consider an untimely PCRA petition if one of

the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-



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6  We recognize the 1995 amendments to the PCRA provided a one-year grace
period for a petitioner to file a first petition when his judgment of sentence
was final before the effective date of the amendment, that is, January 16,
1996. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 n.2 (Pa.
2010). The present petition, however, is White’s third, and, in any event, he
filed it approximately 20 years later.

7 Although White filed his petition in March 2016, for reasons that are not
apparent from the record, the PCRA court did not take any action on the
petition until late August 2018.

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(iii).    Here, White contends his petition meets the newly recognized

constitutional right exception, which provides an avenue for relief if the

petitioner pleads and proves:

         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)(iii). For claims arising prior to December 24, 2017,

a petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the claim.8 See Act 2018, Oct. 24, P.L.

894, No. 146, §2 and §3. Here, White asserts the combination of the U.S.

Supreme Court decisions in Miller and Montgomery satisfies the timeliness

exception.

         As noted above, White has claimed entitlement to the application of

Miller/Montgomery because, at 23 years old at the time of his crime, his

brain had not fully developed as described by the Supreme Court in Miller.

However, in a recent, en banc decision, this Court considered and rejected

this very argument. Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019)

(en banc).



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8 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Accordingly, the one-year
extension does not apply to White’s March 29, 2016 petition.

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      In Lee, the defendant was 18 years and nine-months old when she was

involved in a robbery that resulted in the death of the victim. Id. at 3. Relying

on Miller/Montgomery, the defendant filed a PCRA petition arguing that she

was a “virtual minor” at the time of the crime and “the rationale underlying

the Miller holding, including consideration of characteristics of youth and age-

related facts identified as constitutionally significant by the Miller Court,

provides support for extending the benefit of Miller to her case.” Id. A panel

of this Court disagreed, stating:

      It is not this Court’s role to override the gatekeeping function of
      the PCRA time-bar and create jurisdiction where it does not exist.
      The PCRA’s time limitations “are mandatory and interpreted
      literally; thus, a court has no authority to extend filing periods
      except as the statute permits.” Commonwealth v. Fahy, 558
      Pa. 313, 737 A.2d 214, 222 (1999). The period for filing a PCRA
      petition “is not subject to the doctrine of equitable tolling.” Id.

      We recognize the vast expert research on this issue. If this matter
      were one of first impression and on direct appeal, we might
      expound differently. However, we are an error-correcting court.
      Until the United States Supreme Court or the Pennsylvania
      Supreme Court recognizes a new constitutional right in a non-
      juvenile offender, we are bound by precedent. We conclude, as
      we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa.
      Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa.
      Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759
      (Pa. Super. 2013) abrogation on other grounds recognized in
      Furgess, supra at 94], that age is the sole factor in determining
      whether Miller applies to overcome the PCRA time-bar and we
      decline to extend its categorical holding.

Lee, supra at 11 (footnote omitted).         Thus, the PCRA court correctly

concluded that it lacked jurisdiction to consider White’s third PCRA petition.

Pursuant to Lee, we affirm the PCRA court’s order denying White relief.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




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