Com. v. Aikens, J.

J-S35028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOHN AIKENS
Appellant No. 2155 EDA 2019
Appeal from the PCRA Order entered June 5, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0406531-1993
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 28, 2020
Appellant, John Aikens, appeals from the June 5, 2019 order entered in
the Court of Common Pleas of Philadelphia County, denying his third petition
for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On March 10, 1993, [Appellant] was arrested and charged with
first degree murder, criminal conspiracy, and possession of an
instrument of crime.[1] On July 7, 1994, the Honorable Jane Cutler
Greenspan presided over a non-jury trial and found [Appellant]
guilty of all charges. The same day, Judge Greenspan sentenced
[Appellant] to life imprisonment without the possibility of parole
on the murder conviction, with concurrent sentences on the
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* Retired Senior Judge assigned to the Superior Court.
1 At the time of the homicide, March 6, 1993, see Commonwealth v. Aikens,
No. 2747 PHL 1994, unpublished memorandum at 1 (Pa. Super. filed July 26,
1995), Appellant was over the age of eighteen, see Commonwealth v.
Aikens, No. 2106 EDA 2014, unpublished memorandum at 2 n.2 (Pa. Super.
filed July 14, 2015) (citing PCRA Court Opinion, 10/29/14, at 4).
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remaining charges. [Appellant] filed a direct appeal; the Superior
Court affirmed the judgment of sentence on July 26, 1995.
[Appellant] did not seek review by the Pennsylvania Supreme
Court.
On March 4, 1996, [Appellant] filed his first pro se PCRA petition.
Judge Greenspan conducted an evidentiary hearing on April 8,
1997, and denied relief on May 2, 1997. [Appellant] appealed this
dismissal; the Superior Court affirmed the denial of relief on April
17, 1998. The Pennsylvania Supreme Court denied allocatur on
December 3, 1998.
On June 12, 2013, [Appellant] filed his second pro se PCRA
petition, seeking relief under Miller v. Alabama. On July 1, 2014,
[the PCRA court] dismissed [Appellant]’s petition as untimely
without exception. This dismissal was affirmed on July 14, 2015.
The Pennsylvania Supreme Court denied [Appellant]’s petition for
allowance of appeal on December 29, 2015.
On March 18, 2016, [Appellant] filed his third pro se PCRA
petition, the subject of the instant matter. In this petitioner [sic],
[Appellant] once again sought relief under Miller v. Alabama.
This time he attached a handwritten “birth certificate,” which
indicated that he was born on February 18, 1978. According to
court records, [Appellant] was born in 1974. . . .
. . . On March 4, 2019, the Commonwealth filed its Letter Brief,
attached to which was a birth certificate obtained from the
Pennsylvania Bureau of Public Health showing [Appellant] was
born on February 18, 1974. On May 7, 2019, [the PCRA court]
sent [Appellant] a Notice of Intent to Dismiss Pursuant to Rule
907. On July 3, 2019, [Appellant] replied to this notice, claiming
that the Commonwealth was “mistake” about his date of birth and
that the copy obtained from the Department of Public health “may
present errors causing the Commonwealth to reach the conclusion
they did.” On June 5, 2019, [the PCRA court] dismissed
[Appellant]’s petition based upon lack of merit. On June 19, 2019,
[Appellant] filed a Notice of Appeal to [the] Superior Court.
PCRA Court Opinion, 11/18/19, at 1-3 (unnecessary capitalization removed).
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
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conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (internal citations and quotation marks omitted). As timeliness is
separate and distinct from the merits of Appellant’s underlying claims, we first
determine whether this PCRA petition is timely filed. See Commonwealth
v. Stokes, 959 A.2d 306, 310 (Pa. 2008). The timeliness requirements of the
PCRA petition must be met, even if the underlying claim is a challenge to the
legality of the sentence. See Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999).
We must first determine whether the instant petition is timely. As noted
above, Appellant filed the instant petition in 2019, approximately 24 years
after his judgment of sentence became final.2 As such, the instant petition is
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2 Appellant’s judgment became final on August 28, 1995, at the expiration of
time for seeking review with the Pennsylvania Supreme Court of our decision
rendered on July 26, 1995. See Commonwealth v. Aikens, No. 2106 EDA
2014, supra, at 5, nn. 6, 7, and accompanying text.
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facially untimely. To overcome the untimeliness of the petition, a petitioner
must allege and prove one of the exceptions to the one-year time bar, codified
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). These exceptions include governmental
interference, newly-discovered facts, and after-recognized constitutional
rights. Here, Appellant appears to argue that he meets the after-recognized
constitutional rights exception. Specifically, he argues that he is entitled to
relief under Miller v. Alabama, 132 S.Ct. 2455 (2012). Appellant’s Brief at
1-2. We disagree.
In Miller the United States Supreme Court held that “mandatory life
without parole for those under the age of 18 at the time of their crimes violates
the Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments.”
Miller, 132 S.Ct. at 2460 (emphasis added). In Montgomery v. Louisiana,
136 S.Ct. 718 (2016), the Unites States Supreme Court held that Miller was
a new substantive rule that, under the United States Constitution, must be
retroactively applied in cases on state collateral review. Montgomery, 136
S.Ct. at 736.
We repeatedly have held that Miller does not apply to defendants who
were eighteen or older when they committed murder. Commonwealth v.
Lee, 206 A.3d 1, 7-11 (Pa. Super. 2019) (en banc) (holding Miller applies
only to those who were under the age of eighteen at the time they committed
the offense); Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa.
Super. 2018) (en banc) (holding that the High Court’s ruling in Montgomery
did not extend Miller’s holding to individuals who committed homicides after
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they reached the age of 18); accord Commonwealth v. Furgess, 149 A.3d
90, 94 (Pa. Super. 2016).
Appellant alleges he was less than 18 years old at the time of
commission of the underlying crime, which would make him eligible for relief
under Miller. In support of his claim that he was a minor at the time of the
crime, Appellant produced a birth registration notice and a hospital
certification purportedly showing that he was born on February 18, 1978, not
on February 18, 1974 (as shown in court records). The PCRA court, however,
relying on the court record, and an official birth certificate produced by the
Commonwealth in response to Appellant’s claim, concluded that Appellant was
born on February 18, 1974, and that at the time of the commission of the
underlying crime he was older than 18 years. As such, Appellant was not
entitled to the application of Miller. We agree with the PCRA court.
The record included an official birth certificate issued by the
Commonwealth of Pennsylvania showing Appellant’s date of birth as February
18, 1974. The registration notice and the hospital certification, which are the
documents offered by Appellant, are not birth certificates and are not
acceptable for legal or governmental purposes. See
https://www.health.pa.gov/topics/certificates/Pages/FAQ-Birth.aspx
(“Hospital commemorative birth certificates or birth registration notices issued
by the Division of Vital Records are not birth certificates and are not acceptable
for legal or governmental purposes.”). Thus, the record supports the PCRA
court findings and conclusions that Appellant was born on February 18, 1974,
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which makes Appellant ineligible for relief under Miller. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/20
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