Com. v. Bell, D. ( 2021 )

J-S25012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVON BELL :
:
Appellant : No. 2273 EDA 2020
Appeal from the PCRA Order Entered November 4, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0702871-1999
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: October 7, 2021
Appellant, Devon Bell, appeals pro se from the post-conviction court’s
November 4, 2020 order denying, as untimely, his petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. The PCRA court briefly summarized the relevant procedural
history of his case, as follows:
On August 10, 2001, this [c]ourt convicted [Appellant] of first-
degree murder, aggravated assault, conspiracy, and possessing
[an] instrument[] of crime[]. [Appellant] was sentenced on
December 10, 2001[,] to life imprisonment for the murder
conviction and lesser sentences for the remaining crimes. The
Pennsylvania Superior Court affirmed the judgment of sentence[,]
and in January 2005[,] the Pennsylvania Supreme Court denied
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S25012-21
allowance of appeal. [See Commonwealth v. Bell, 863 A.2d
1218 (Pa. Super. 2004), appeal denied, 868 A.2d 450 (Pa. 2005).]
From 2005 to present, [Appellant] has filed several unsuccessful
pro se PCRA [p]etitions. On April 4, 2019[, Appellant] filed the
instant[,] pro se PCRA petition. [Appellant] also filed
amended/supplemental petitions[,] which were reviewed jointly
with his initial petition. Pursuant to Pennsylvania Rule of Criminal
Procedure 907, [Appellant] was served notice of the PCRA court’s
intention to dismiss his petition on September 21, 2020.
[Appellant] submitted a response to the Rule 907 notice on
October 8, 2020. On November 4, 2020, the PCRA court
dismissed his petition as untimely. On November 16, 2020, the
instant notice of appeal was timely filed….
PCRA Court Opinion (PCO), 4/29/21, at 1 (unnumbered).
The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. It filed a Rule 1925(a) opinion
on April 29, 2021. In Appellant’s pro se brief, he raises 27 issues for our
review. See Appellant’s Brief at 4-10. However, his three-page Argument is
not divided into sections corresponding with those 27 claims; indeed, his
Argument is not divided into any sections at all. See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.”). This briefing
defect impedes our ability to meaningfully review Appellant’s appeal and, thus,
we could dismiss his appeal or deem his issues waived. See Commonwealth
v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). However, because we are
able to discern the basic arguments Appellant raises herein, we will overlook
his briefing error.
-2-
J-S25012-21
We summarize Appellant’s issues as follows:
(1) The evidence was insufficient to support Appellant’s first-
degree murder conviction and, thus, his sentence is illegal.
(2) Appellant’s defense counsel acted ineffectively.
(3) Due to a language barrier, Appellant was deprived of a fair
trial.
(4) Appellant has discovered new evidence proving that someone
else committed the crime.
(5) Appellant’s life sentence is illegal under Miller v. Alabama,
567 U.S. 460, 479 (2012) (holding that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders”), and Montgomery v.
Louisiana, 577 U.S. 190, 212 (2016) (holding that Miller’s
prohibition on mandatory life without parole for juvenile offenders
constitutes a new substantive rule that applies retroactively to
cases on collateral review).
Appellant’s Brief at 14-16.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
-3-
J-S25012-21
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final in 2005, making
his present petition filed in 2019 patently untimely. Consequently, for this
Court to have jurisdiction to review the merits thereof, Appellant must prove
that he meets one of the exceptions to the timeliness requirements set forth
in 42 Pa.C.S. § 9545(b).
Instantly, Appellant makes no attempt to explain how any of his first
three claims meet a timeliness exception. Indeed, he presents only a single
sentence for each of these three issues. See Appellant’s Brief at 14 (“[T]he
circumstances of the crime did not match with the charge of [f]irst[-d]egree
-4-
J-S25012-21
[m]urder or the sentence of [l]ife in [p]rison without the possibility of
[p]arole.”); id. at 15 (“Appellant also avers that numerous and blatant
miscarriages of [j]ustice were carried out by defense trial [counsel].”); id.
(“Due to a language barrier and an ignorance of the law, [A]ppellant contends
that he was depraived [sic] of a fair and unbiased trial.”). Moreover, it is
obvious that Appellant could have raised any or all of these claims directly
after his conviction in 2005. Thus, none of Appellant’s first three issues
satisfies a timeliness exception.
While Appellant’s fourth claim that he has discovered new, exculpatory
evidence seems to be an attempt to satisfy section 9545(b)(1)(ii), Appellant
again offers only a single sentence in support of this issue, with no discussion
of what evidence he has discovered, when he discovered it, or why he could
not have learned about it earlier in the exercise of due diligence. See id. at
16 (“Appellant also contends that new[,] exculpatory evidence has been
gathered that would show that another person committed the crime,
ultimately exonerating [Appellant].”). Thus, Appellant has failed to prove the
applicability of the new-fact timeliness exception.
In Appellant’s fifth and final issue, he avers that his sentence is illegal
under Miller and Montgomery. It is clear that Miller can be used to satisfy
section 9545(b)(1)(iii), as it created a new constitutional right that was held
to apply retroactively in Montgomery. However, Montgomery was decided
in 2016, and Appellant did not file his petition until 2019. Therefore, he cannot
meet section 9545(b)(2).
-5-
J-S25012-21
Moreover, the Commonwealth points out that Appellant was 28 years
old when he committed the crimes in this case. See Commonwealth’s Brief
at 14. This Court has held that defendants who were 18 years or older at the
time of their crimes cannot invoke Miller as the basis for an exception to the
PCRA time-bar. See Commonwealth v. Lee, 206 A.3d 1, 7-11 (Pa. Super.
2019) (en banc) (holding that Miller applies only to those who were under
the age of eighteen at the time [they] committed the offense and, thus, “age
is the sole factor in determining whether Miller applies to overcome the PCRA
time-bar”). Accordingly, Appellant’s Miller claim fails to meet the timeliness
exception of section 9545(b)(1)(iii).1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/21
____________________________________________
1 To the extent that Appellant proffered different and/or additional claims in
his pro se PCRA petition, which the PCRA court addressed in its opinion, he
has abandoned those arguments by failing to raise them on appeal.
-6-