J-S80033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DWAYNE BROWN,                              :
                                               :
                      Appellant                :       No. 923 EDA 2017

                 Appeal from the PCRA Order February 17, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0307362-1996

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 26, 2018

       Dwayne Brown (“Brown”) appeals, pro se, from the Order dismissing

his Petition for Writ of Habeas Corpus.1 We affirm.

       A jury found Brown guilty of murder of the first degree, possession of

an instrument of crime, criminal conspiracy, and attempted murder.        The

trial court imposed an aggregate sentence of life in prison without parole.
____________________________________________


1 In his Petition for Writ of Habeas Corpus, Brown only challenges the
legality of his sentence. Because Brown filed his Petition after his judgment
of sentence became final, and the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546, provides a remedy for his claim, the Petition was
properly treated as filed pursuant to the PCRA. See 42 Pa.C.S.A. § 9542
(providing that “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram nobis.”); see
also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(stating that “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.”) (citation omitted).
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This Court affirmed the judgment of sentence, and the Supreme Court of

Pennsylvania denied allowance of appeal. See Commonwealth v. Brown,

739 A.2d 582 (Pa. Super. 1999) (unpublished memorandum), appeal

denied, 749 A.2d 465 (Pa. 2000).               On June 12, 2000, the United States

Supreme Court denied Brown’s Petition for writ of certiorari. See Brown v.

Pennsylvania, 530 U.S. 1234 (2000).

       Brown filed four previous PCRA Petitions, all of which the PCRA court

either denied or dismissed.         On March 24, 2016, Brown filed the instant

Petition.2 In January 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice

of its intent to dismiss the Petition, and Brown filed a Response. The PCRA

court then dismissed Brown’s fifth Petition.          Brown filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.

       On appeal, Brown raises the following question for our review:

“Whether [Brown] is entitled to post conviction relief based on newly

discovered mitigating evidence regarding brain science and social science

study?” Brief for Appellant at 3 (some capitalization omitted).
____________________________________________


2 We note that Brown’s appeal from the dismissal of his fourth PCRA Petition
was pending at the time he filed the instant Petition. See Commonwealth
v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that a PCRA court cannot
entertain a new PCRA petition when a prior petition is under appellate
review). However, this Court’s decision affirming the dismissal of Brown’s
fourth PCRA Petition was decided on July 11, 2016, and Brown did not seek
further review. See Commonwealth v. Brown, 143 A.3d 418 (Pa. Super.
2016). Because Brown’s fifth Petition was not reviewed or decided until
Brown’s appeal as to his fourth Petition had been completed, we will
examine the instant appeal.



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     “On appeal from the [dismissal] of PCRA relief, our standard of review

calls for us to determine whether the ruling of the PCRA court is supported

by the record and free of legal error.” Commonwealth v. Nero, 58 A.3d

802, 805 (Pa. Super. 2012).

     Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filled within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

     Here, Brown’s Petition is facially untimely under the PCRA.      See 42

Pa.C.S.A. § 9545(b).     However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition

invoking one of these exceptions “shall be filed within 60 days of the date

the claim could have been presented.” Id. § 9545(b).

     Here, Brown invokes the newly-discovered facts exception at section

9545(b)(1)(ii), based upon the decisions in Montgomery v. Louisiana, 136




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S. Ct. 718 (2016), and Miller v. Alabama, 567 U.S. 460 (2012).3                    In

Miller, the United States Supreme Court held that sentencing schemes that

mandate life in prison without parole for defendants who committed their

crimes while under the age of eighteen violate the Eighth Amendment’s

prohibition on “cruel and unusual punishments.” Miller, 567 U.S. 465. The

Court reasoned that in light of a juvenile’s diminished culpability and

heightened capacity for change, mandatory juvenile sentencing schemes

pose too great a risk of disproportionate punishment, in contravention of the

Eighth Amendment. Id. at 479. In Montgomery the United State Supreme

Court held that Miller applies retroactively. See Montgomery, 136 S. Ct.

at 736.

       Brown’s reliance upon Miller and Montgomery as newly-discovered

facts is without merit, as judicial decisions do not constitute newly-

discovered     facts   for   the   purposes      of   Section   9545(b)(1)(ii).   See

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).4 Even if Brown

____________________________________________


3We note that Brown filed the instant Petition within 60 days of the
Montgomery decision.

4 To the extent Brown invokes the newly-discovered facts exception based
upon studies and data that revealed that the brain does not fully develop
until the age of twenty-five years old, we conclude that Brown has not
exercised due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (stating that “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[.]”). Here,
Brown relies upon information cited in Miller, which was decided in June
2012, nearly four years prior to the filing of the instant Petition.



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had invoked the newly-recognized constitutional right exception, he would

not be entitled to relief under Miller and Montgomery.           Indeed, Brown

concedes that he was twenty-two years old when he committed the murder.

See Brief for Appellant at 12; see also Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016) (noting that “petitioners who were older than

18 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).”); id. (rejecting

appellant’s   argument    to   extend   the   Miller   holding    based   upon

neuroscientific theories regarding brain development of persons over the age

of 18).

      Based upon the foregoing, the PCRA court properly dismissed Brown’s

PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/18




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