Com. v. Brown, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRENT BROWN :
:
Appellant : No. 316 EDA 2021
Appeal from the PCRA Order Entered January 7, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0231341-1986
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: Filed: October 13, 2021
Brent Brown appeals from the order dismissing, as untimely, his third
petition pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
In 1975, Appellant pled guilty to committing third-degree murder and
was sentenced to serve six to twenty years of imprisonment. At the time of
his offense in 1975, Appellant was eighteen years old. Approximately eleven
years later, Appellant stabbed Marvin Sharps outside a bar in Philadelphia. In
1988, after proceeding to a non-jury trial, the trial court found Appellant guilty
of third-degree murder and possessing an instrument of crime (“PIC”). Since
Appellant had a prior third-degree murder conviction, the trial court imposed
a mandatory sentence of life without the possibility of parole (“LWOP”)
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* Retired Senior Judge assigned to the Superior Court.
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pursuant to 42 Pa.C.S. § 9715.1 Appellant also received a concurrent one to
two years of incarceration for the PIC conviction.
Appellant filed a timely direct appeal. A prior panel of this Court affirmed
Appellant’s judgment of sentence, and our Supreme Court denied Appellant’s
petition for allowance of appeal. See Commonwealth v. Brown, 555 A.2d
242 (Pa.Super. 1988) (unpublished memorandum), appeal denied, 565 A.2d
1165 (Pa. 1988).
In 1990, Appellant filed a timely pro se PCRA petition. Ultimately,
Appellant’s appointed PCRA counsel filed a “no merit letter” and petitioned the
court to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). After conducting an independent review, the PCRA court entered an
order granting counsel’s petition to withdraw and dismissed Appellant’s PCRA
petition as frivolous. On June 4, 1991, a prior panel of this Court affirmed the
denial of PCRA relief. See Commonwealth v. Brown, 596 A.2d 249(Pa.Super. 1990) (unpublished memorandum).
Over thirteen years later, on December 23, 2004, Appellant filed a
second pro se PCRA petition claiming that his sentence was illegal because the
trial court misled him during his jury-trial waiver colloquy. The PCRA court
dismissed Appellant’s second petition as untimely, and we affirmed the denial
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1 “[A]ny person convicted of murder of the third degree in this Commonwealth
who has previously been convicted at any time of murder or voluntary
manslaughter in this Commonwealth . . . shall be sentenced to life
imprisonment . . .” 42 Pa.C.S. 9715(a).
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of PCRA relief. See Commonwealth v. Brown, 935 A.2d 5 (Pa.Super. 2007)
(unpublished memorandum).
On August 16, 2012, Appellant filed his third pro se PCRA petition. On
November 10, 2020, the PCRA court provided Appellant with Rule 907 notice
that it intended to dismiss his petition as untimely.2 On January 7, 2021, the
PCRA court dismissed the petition as untimely. This timely appeal followed.
Appellant presents the following issues for our review:
1. Mandatory [LWOP] term under 42 Pa.C.S. [§] 9715 is
unconstitutional and violates State and Federal Equal
Protection clauses, as well as Article 7 of the Universal
Declaration of Human Rights, where [first] offense occurred
turning [eighteen] years of age, and second offense occurred
at age [twenty-nine] while defending himself.
2. Mandatory [LWOP] term for individuals for [first] offense over
age [seventeen] but below age [twenty-five], and for second
offense age [twenty-nine] violates the Eighth Amendment,
Article [five] of the Universal declaration of Human rights, as
well as Article I, sec. 13 of the Pennsylvania constitution.
3. Should [Appellant’s] current [LWOP] sentence be vacated and
remanded, because Appellant’s age at time of first offense was
[eighteen] rendering it unconstitutional to apply second offense
at age [twenty-nine] under 42 Pa.C.S. [§] 9715.
Appellant’s brief at 3-4, 6.
We begin with the pertinent legal principles. Our “review is limited to
the findings of the PCRA court and the evidence of record” and we do not
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2 The certified record does not indicate the reason for the eight year delay
between the filing of Appellant’s PCRA petition and the PCRA court’s issuance
of the Rule 907 notice.
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“disturb a PCRA court’s ruling if it is supported by evidence of record and is
free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Finally, we
“may affirm a PCRA court’s decision on any grounds if the record supports it.”
Id.Pursuant to the PCRA, any petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment [of sentence]
becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes
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. § 9543(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. Spotz, 171 A.3d 675, 678 (Pa. 2017); See
Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.2007) (where
petitioner files an untimely PCRA petition raising a legality of sentence claim,
the jurisdictional limits of the PCRA render the claim incapable of review).
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The time bar can “only be overcome by satisfaction of one of the three
statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” Id. The
three narrow exceptions to the one-year time bar are as follows: “(1)
interference by governmental officials in the presentation of the claim; (2)
newly-discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).
Additionally, Appellant was required to present the exception within sixty days
of the date the claim first could have been presented. 42 Pa.C.S.
§ 9545(b)(2).3
There is no question that the instant petition is untimely on its face.
However, Appellant avers that he can overcome the PCRA time bar by the
application of the newly-recognized constitutional right exception. See
Appellant’s brief at 3. Appellant argues that the United States Supreme
Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), which was made
retroactive by Montgomery v. Louisiana, 577 U.S. 190 (2016), warrants
relief. Although he was twenty-nine years old at the time of the instant
offense, Appellant contends that the use of a predicate third-degree murder
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3 Effective December 24, 2018, the legislature amended 42 Pa.C.S. §
9545(b)(2) to give petitioners one year to present their claim. See 42 Pa.C.S.
§ 9545(b)(2) (effective December 24, 2018). However, the amendment only
applies to “claims arising on [December] 24, 2017 or thereafter.” See id. at
Comment. Appellant filed his current petition in 2012; thus, the amendment
does not apply to Appellant’s claim.
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conviction to form the basis for the imposition of LWOP pursuant to 42 Pa.C.S.
§ 9715(a) violated Miller. See Appellant’s brief at 4.
The PCRA court concluded that Appellant was not entitled to relief under
these decisions because Appellant was twenty-nine and eighteen years of age
when he committed his respective murders that qualified him for a mandatory
life sentence under § 9715(a), and Miller’s holding applies only to those
defendants who were under the age of eighteen at the time of their crimes.
See PCRA Court Opinion, 1/7/21. We agree with the PCRA court’s
determination.
By his own admission, Appellant was eighteen at the time of the first
crime and twenty-nine when he committed the second. See Appellant’s brief
at 1. Nevertheless, relying on neuroscientific theories, Appellant contends
that Miller should be extended to individuals such as himself on the basis that
he had just turned eighteen at the time of his first murder. Therefore, his
brain was not yet fully formed. Id. at 4. Such an argument falls outside the
scope of Miller and does not meet the exception to the PCRA time bar.
We have consistently held that “age is the sole factor in determining
whether Miller applies to overcome the PCRA time-bar” and have “declined
to extend [Miller’s] categorical holding.” Commonwealth v. Lee, 206 A.3d
1, 11 (Pa.Super. 2019) (en banc); see also Commonwealth v. Furgess,
149 A.3d 90, 91-94 (Pa.Super. 2016) (rejecting a nineteen-year-old
defendant’s claim that Miller allowed him to overcome the PCRA time bar
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because he was a “technical juvenile” based on neuroscientific theories
pertaining to immature brain development). Accordingly, Appellant’s claim
that the right created in Miller/Montgomery applies to his case is meritless.
The PCRA court properly found that Appellant’s petition was untimely because
he failed to establish a statutory exception to the time bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/21
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