Com. v. Gamble, B. ( 2019 )

J-S02042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRADFORD GAMBLE :
:
Appellant : No. 1843 EDA 2018
Appeal from the PCRA Order Entered May 21, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0209741-1976
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED FEBRUARY 12, 2019
Appellant, Bradford Gamble, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which dismissed as untimely
his serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On July 22, 1976, a jury convicted Appellant of first-
degree murder and various weapons offenses. The court sentenced Appellant
on December 2, 1976, to life imprisonment for the murder conviction and
imposed lesser terms of imprisonment for the weapons offenses. Our
Supreme Court affirmed the judgment of sentence on July 6, 1979. See
Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979).
On March 21, 2016, Appellant filed the current serial pro se PCRA
petition. The court issued notice per Pa.R.Crim.P. 907, on November 17,
2017. Appellant did not respond. On May 21, 2018, the PCRA court dismissed
J-S02042-19
the petition as untimely. Appellant timely filed a pro se notice of appeal on
June 14, 2018. No Pa.R.A.P. 1925(b) statement was ordered or filed.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited circumstances
under which the late filing of a petition will be excused; a petitioner asserting
a timeliness exception must file a petition within 60 days of when the claim
could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s judgment of sentence became final on October 4,
1979, upon expiration of the time for filing a petition for writ of certiorari with
the U.S. Supreme Court. See U.S.Sup.Ct.R. 22 (effective July 1, 1970;
allowing 90 days to file petition for writ of certiorari with U.S. Supreme Court).
Appellant filed the current PCRA petition on March 21, 2016, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the
“new constitutional right” exception to the statutory time-bar per Section
9545(b)(1)(iii), claiming he is entitled to relief under Miller v. Alabama, 567
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J-S02042-19
U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (holding sentence of
mandatory life imprisonment without possibility of parole, for those under age
of 18 at time of their crimes, violates Eighth Amendment’s prohibition on cruel
and unusual punishments) and Montgomery v. Louisiana, ___ U.S. ___,
136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (holding Miller applies retroactively
to cases on state collateral review). Nevertheless, Appellant concedes he was
19 years old at the time of the offenses at issue. Thus, Miller and
Montgomery do not apply. Furthermore, this Court has previously rejected
the novel argument that relief under Miller and Montgomery should be
extended to individuals under 25 years old because the brain is not developed
fully until that age. See Commonwealth v. Furgess, 149 A.3d 90
(Pa.Super. 2016) (holding appellant who was 19 years old at time of offenses
was not entitled to relief under Miller and Montgomery on collateral review;
rejecting “technical juvenile” argument). Therefore, the court properly
dismissed Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/19
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