Com. v. Pompa, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS POMPA
Appellant No. 823 EDA 2018
Appeal from the PCRA Order March 2, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0350571-1992
BEFORE: PANELLA, Pa, GANTMAN, P.J.E., and PELLEGRINI*, J.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JULY 23, 2019
Appellant, Carlos Pompa, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which denied as untimely his first
petition filed under the Post Conviction Relief Act ("PCRA").1 On August 25,
1992, a jury convicted Appellant of first -degree murder, robbery, and
possessing an instrument of crime. The court sentenced Appellant to life
imprisonment without the possibility of parole. This Court affirmed the
judgment of sentence on May 20, 1994, and our Supreme Court denied
allowance of appeal on November 18, 1994. See Commonwealth v.
Pompa, 647 A.2d 266 (Pa.Super. 1994), appeal denied, 539 Pa. 666, 652
A.2d 837 (1994). On August 22, 2012, Appellant filed the current PCRA
1 42 Pa.C.S.A. §§ 9541-9546.
Retired Senior Judge assigned to the Superior Court.
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petition. The court appointed counsel, who filed a petition to withdraw and a
Turner/Finley2 no -merit letter on January 12, 2018. The court issued Rule
907 notice on February 2, 2018. On March 2, 2018, the court dismissed
Appellant's petition and permitted counsel to withdraw.3 Appellant timely filed
a pro se notice of appeal on March 14, 2018, and attached a voluntary concise
statement of errors per Pa.R.A.P. 1925(b).
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA 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
U.S. Supreme Court and the Pennsylvania Supreme Court, or upon expiration
of the 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 to
excuse the late filing of a petition; a petitioner asserting a timeliness exception
must file a petition within 60 days of when the claim could have been
presented.4 42 Pa.C.S.A. § 9545(b)(1-2).
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 Due to a clerical error, the court did not enter the order permitting counsel
to withdraw from representation until May 14, 2018.
4 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
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Instantly, the judgment of sentence became final on February 16, 1995,
following expiration of the 90 days for filing a petition for certiorari with the
U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current
petition on August 22, 2012, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Appellant attempts to invoke the "new constitutional right"
exception per Section 9545(b)(1)(iii), claiming the Miller/Montgomery5
cases afford him relief. Appellant, however, was 27 years old at the time of
his offense so the Miller/Montgomery cases do not apply to him. Moreover,
this Court has previously rejected the "technical juvenile" argument that
Miller/Montgomery relief should be extended to individuals over the age of
18 because a person's brain is not fully developed until the mid -twenties. See
Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016) (rejecting
"technical juvenile" argument for 19 year old appellant). Therefore,
Appellant's current petition remains time -barred. Accordingly, we affirm.
Order affirmed.
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
does not apply to Appellant's case, which arose before the effective date of
the amendment.
5 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)
and Montgomery v. Louisiana, U.S. , 136 S. Ct. 718, 193 L. Ed. 2d
599 (2016).
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/23/19
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