Com. v. Ross, B. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRIAN ROSS, : No. 1672 EDA 2017
:
Appellant :
Appeal from the PCRA Order, April 26, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0225691-1992
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018
Brian Ross (“appellant”) appeals pro se from the order of the Court of
Common Pleas of Philadelphia County that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Because we agree with the PCRA court that appellant’s facially
untimely petition failed to establish a statutory exception to the one-year
jurisdictional time limit for filing a petition under the PCRA, we affirm.
The factual and procedural history, as stated by the PCRA court, is as
follows:
On October 26, 1992, following a non-jury trial, the
Honorable Robert A. Latrone found [appellant] guilty
of second degree murder, robbery, possessing an
instrument of crime, and criminal conspiracy.[1] On
December 27, 1995, after denying [appellant’s]
1 18 Pa.C.S.A. §§ 2502(b), 3701, 907, and 903, respectively.
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post-trial motions, Judge Latrone sentenced
[appellant] to life imprisonment. The Pennsylvania
Superior Court affirmed [appellant’s] judgment of
sentence on April 8, 1998, and allocatur was
subsequently denied on August 31,
1998.[Footnote 2]
[Footnote 2] Commonwealth v. Ross,
718 A.2d 347 (Pa.Super. 1998)
(unpublished memorandum), appeal
denied, 727 A.2d 130 (Pa. 1998).
On February 17, 1999, [appellant] filed his first
pro se Post Conviction Relief Act petition. Counsel
was appointed and subsequently filed an amended
petition. On March 6, 2003, the PCRA petition was
dismissed without a hearing. The Pennsylvania
Superior Court affirmed the trial court’s dismissal on
June 15, 2004, followed by the Pennsylvania
Supreme Court’s denial of allocatur on
November 10, 2004.[Footnote 3]
[Footnote 3] Commonwealth v. Ross,
858 A.2d 1281 (Pa.Super. 2004)
(unpublished memorandum), appeal
denied, 863 A.2d 1145 (Pa. 2004).
The instant petition was filed on August 3, 2012,
followed by several amended petitions dated June 9,
2014, and March 23, 2016. Pursuant to Pa.R.Crim.P.
907, this court sent a notice of intent to dismiss the
petition as untimely without exception on
February 28, 2017. In response to this court’s 907
notice, [appellant] filed another petition on
March 18, 2017. This court formally dismissed the
petition on April 26, 2017.[Footnote 4] [Appellant]
timely filed a notice of appeal to the Pennsylvania
Superior Court on May 17, 2017.
[Footnote 4] The order was issued more
than twenty days after [appellant] was
served with notice of the forthcoming
dismissal of his Post-Conviction Relief Act
petition. Pa.R.Crim.P. 907.
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Trial court opinion, 7/5/17 at 1-2.
Appellant submitted a “Statement of Error Complained of on Appeal”
on May 17, 2017 along with his notice of appeal. On July 7, 2017, the trial
court filed an opinion, pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for this court’s review:
I. Whether (in) reviewing the (property) [sic] of
the (PCRA) court’s dismissal of appellant’s
PCRA filing, it was an abuse of discretion for
the (PCRA) court to determine that it was
untimely . . . where the petition was timely
filed under Title 42 Pa.C.S.A. §9545(b)(1)(iii)
and 42 Pa.C.S.A. §9545(b) (2), because newly
recognized constitutional rights were enacted
by the United States Supreme . . . Court
applying to appellant retroactively?
II. Whether the PCRA court errred [sic] and
denied appellant his federal and state
constitutional rights to due process of law by
dismissing appellant’s second/subsequent
PCRA petition wihout [sic] an evidentiary
hearing and appointment of counsel . . . where
appellant raised the timeliness of his
second/subsequent PCRA petition?
Appellant’s brief at 4 (full capitalization omitted).
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
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proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
the trial court’s determination is supported by
evidence of record and whether it is free of legal
error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,
we must first determine if we have jurisdiction to do so.
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petition.
This court has held the following regarding when a judgment becomes final:
The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time seeking
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direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution, or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).
In the instant case, the trial court sentenced appellant on
December 27, 1995. This court affirmed the judgment of sentence on
April 8, 1998. The Supreme Court of Pennsylvania denied his appeal on
August 31, 1998. See Commonwealth v. Ross, 718 A.2d 347 (Pa.Super.
1998) (unpublished memorandum), appeal denied, 727 A.2d 130 (Pa.
1998). Appellant’s sentence became final on November 30, 1998, when the
90-day period for petitioning for certiorari with the Supreme Court of the
United States ended. See 42 Pa.C.S.A. § 9545(b)(3); see also
U.S.Sup.Ct.R. 13.2 Appellant’s time for filing a timely PCRA ended one year
2 Although the 90-day period would have expired on November 29, 1998,
that day was a Sunday. Under U.S.Sup.Ct.R. 30, the deadline carried over
to the following Monday, November 30, 1998.
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after November 30, 1998. Appellant filed the current PCRA petition on
August 3, 2012, almost 13 years after the PCRA time-bar. See 42 Pa.C.S.A.
§ 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. In order to file a petition after one year has passed from the
final judgment of sentence, appellant must plead and prove one of the
following exceptions:
(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.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
Here, appellant asserts that he meets the timeliness exception set
forth in 42 Pa.C.S.A. § 9545(b)(1)(iii). Initially, appellant asserts that
Rosemond v. United States, 572 U.S. 65 (2014), permits him to come
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under the constitutional right exception. However, a review of Rosemond
reveals that the case does not address a constitutional right at all. Rather,
Rosemond addresses what proof is necessary to establish that a defendant
aided and abetted in the commission of a crime under 18 U.S.C. § 924(c).
As the PCRA court noted, Rosemond is inapplicable because it interprets a
federal statute and does not create a new constitutional right.
Appellant next contends that the Supreme Court of the United States
decisions Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), primarily relied on neuroscientific theories
regarding immature brain development, not age, and should be extended to
appellant who was convicted of murder when he was older than 18 at the
time of the commission of the crime.
In Miller, the Supreme Court recognized a constitutional right for
juveniles, holding that “mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition against ‘cruel and unusual punishments.’” Miller, 567 U.S. at
465. In Montgomery, the Supreme Court recently held that its rule
announced in Miller applies retroactively on collateral review.
Montgomery, 136 S.Ct. at 736.
This court has repeatedly recognized that Miller and its progeny do
not create a newly recognized constitutional right for petitioners who were
over the age of 18 at the time they committed their crimes. See
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Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding
that an appellant’s assertion of the time-bar exception set forth in
Section 9545(b)(1)(iii) must be rejected because the constitutional rule
rendering the mandatory sentences of life imprisonment without possibility
of parole on juveniles unconstitutional applied only to those defendants who
were under 18 when offenses were committed).
Here, appellant acknowledges that he was over 18 years of age 3 on
the date the crime was committed, but posits that Miller and Montgomery
are applicable because his “brain definitely was not developed or matured”
at the time of this crime. (Appellant’s brief at 10-11.) This court has
repeatedly rejected similar arguments invoking Section 9545(b)(1)(iii) in this
manner. In Commonwealth v. Montgomery, 181 A.3d 359 (Pa.Super.
2018), an en banc panel of this court recently stated as follows:
This Court noted that Miller only applies to
defendants who were “under the age of 18 at the
time of their crimes.” [Furgess, 149 A.3d] at 94,
quoting Miller, 567 U.S. at 465[.] Moreover, as
this Court noted in Furgess, Appellant’s argument
attempts to extend Miller to those adults whose
brains were not fully developed at the time of their
offense. See Furgess, 149 A.3d at 94. This
argument fails, however, because “a contention that
a newly-recognized constitutional right should be
extended to others does not [satisfy the new
constitutional rule exception to the PCRA’s timeliness
requirement.]” Id. at 95 (internal alteration
omitted; emphasis removed)[.]
3 The certified record, however, indicates that appellant was born on
February 6, 1966, which would make him 24 years old at the time of the
crime. (See arrest report, 1/14/92.)
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Instead, the PCRA requires that the Supreme Court
of the United States or our Supreme Court extend
the new right to a class of individuals, and make the
extension retroactive, in order to satisfy the new
constitutional right timeliness exception.
42 Pa.C.S.A. § 9545(b)(1)(iii). Montgomery merely
made Miller retroactive for juvenile offenders whose
judgments of sentence had already become final. It
did not extend Miller’s holding to those individuals
who committed homicides after they reached the age
of 18. Furgess, 149 A.3d at 95.
Montgomery, 181 A.3d at 366 (some citations omitted; bracketed text in
original.) Based on the forgoing, Miller and Montgomery are inapplicable.
Appellant also raises the exception contained in 42 Pa.C.S.A.
§ 9545(b)(1)(ii) for newly discovered facts on the basis that
Dr. Erin David Bigler, a neuropsychologist, has published research findings
after Miller and Montgomery that indicate that those between the ages of
18 and approximately 25 share the same characteristics as those under the
age of 18. He also claims that research by Laurence Steinberg, a Temple
University psychologist who specializes in brain development, indicates that
certain parts of the brain that influence criminal culpability do not mature
until a person’s mid-twenties.
A review of the record reveals that appellant has not claimed this
exception to the timeliness requirements based on academic/medical
research in his PCRA petition or in any amendments to the petition, in his
response to the dismissal notice pursuant to Pa.R.Crim.P. 907, in his concise
statement of errors complained of on appeal, or in the statement of
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questions involved in his brief. Consequently, this issue is waived. See
Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002) (providing that the
failure to raise an issue before a PCRA court constitutes waiver of claim for
appeal); Pa.R.A.P. 302(a) (stating issues not raised in lower court are
waived and cannot be raised for first time on appeal).
Appellant has not successfully pled or proven that he meets the
exception to the timeliness requirements of the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/18
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