J-S67022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN BELL : : Appellant : No. 2516 EDA 2017
Appeal from the PCRA Order July 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0637031-1992
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 16, 2019
Appellant Kevin Bell appeals pro se from the order dismissing his serial
petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, which sought relief based on Miller v. Alabama, 567 U.S. 460 (2012).
Appellant asserts that because he was eighteen years old when he committed
the underlying murder, the PCRA court erred by dismissing his petition as
untimely. We affirm.
The factual background to this matter need not be stated in detail. We
note that Appellant, when he was approximately four months past his
eighteenth birthday, killed another individual. Appellant was convicted of
first-degree murder, and the trial court sentenced him to life imprisonment
without the possibility of parole in 1994. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S67022-18
On November 14, 1995, this Court affirmed Appellant’s judgment of
sentence, and the Supreme Court of Pennsylvania denied Appellant’s petition
for allowance of appeal on May 9, 1996. Thereafter, Appellant filed several
unsuccessful PCRA petitions.
Appellant filed the instant pro se PCRA petition on August 13, 2012,
claiming that Miller applied to his case.1 Appellant submitted an amended
PCRA petition on March 23, 2016, following the ruling in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). The PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition. Appellant filed a response
reiterating his claim that Miller extended to defendants over the age of
eighteen and that equal protection principles demanded that he be entitled to
relief. The court dismissed Appellant’s instant PCRA petition without a hearing
on July 17, 2017. Appellant filed a timely notice of appeal.
Appellant filed a timely court-ordered concise statement of matters
complained of on appeal under Pa.R.A.P. 1925(b). The PCRA court filed an
opinion pursuant to Pa.R.A.P. 1925(a) in which it concluded that
[Appellant] was over the age of eighteen at the time of the offense, placing his sentence outside the reach of the Supreme Court’s Miller decision. Therefore, [Appellant] has failed to invoke [the newly recognized constitutional right] exception, and his petition must be dismissed as untimely.
PCRA Ct. Op., 7/17/17, at 1 (unpaginated).
____________________________________________
1 Appellant filed his petition within sixty days of the date that Miller was issued.
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Appellant raises the following question for our review:
1. Whether the unconstitutional sentencing statute under Miller, 18 Pa.C.S. [§] 1102(a), is also unconstitutional for vagueness rendering [A]ppellant’s sentence unlawful?
2. Whether [A]ppellant’s PCRA petition satisfied a statutory exception to the PCRA’s jurisdictional time-bar?
3. Whether under the 14th Amendment’s ‘Equal Protection Clause,’ because of his youth, [A]ppellant is entitled to the same relief under Miller as the class of youth labeled juveniles?
Appellant’s Brief at 2 (reordered to facilitate disposition).
As to Appellant’s first question, we note that Appellant suggests that 18
Pa.C.S. § 1102(a) is unconstitutionally vague. However, Appellant has
abandoned that argument on appeal. See id. at 27 (abandoning Appellant’s
third claim); Pa.R.A.P. 2119(a). In any event, we note that Appellant did not
raise this claim in his PCRA petition or response to the PCRA court’s Rule 907
notice or assert that it was raised in a timely fashion. See PCRA Pet., 8/13/12;
Resp. to Rule 907 Notice of Intent to Dismiss, 4/28/17; Pa.R.A.P. 302(a).
Therefore, we decline to consider this issue.2
As to Appellant’s final two questions presented, we summarize
Appellant’s arguments together as they are interrelated. Appellant asserts
that he established a PCRA time-bar exception under 42 Pa.C.S. §
9545(b)(1)(ii), (iii), and (b)(2), because he filed the instant PCRA petition ____________________________________________
2 Even if this claim were not waived, we are without jurisdiction to consider it because Appellant has failed to meet a timeliness exception to the PCRA’s time-bar as discussed in further detail below.
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within sixty days of Miller. According to Appellant, “[t]he facts that . . .
juvenile offenders [are] in their transitory phase of adolescence and [their]
potential for reform [makes them] less culpable than adult offenders[,]
making a sentence of life without parole unconstitutional for them[,] were
unknown to [A]ppellant[.]” Appellant’s Brief at 12. Appellant asserts that
Miller adopted the proposition that “the qualities that distinguish juveniles
from adults do not disappear when an individual turns 18.” Id. at 15 (citing
Roper v. Simmons, 543 U.S. 551, 574 (2005)). He further asserts that
denying the benefits of Miller to people over the age of eighteen would violate
equal protection principles.
In considering an order denying a PCRA petition, our standard of review
is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016) (citations
omitted).
The PCRA provides for three statutory exceptions to its timeliness
requirements, which apply in limited circumstances as set forth in 42 Pa.C.S.
§ 9545(b)(1). Id. at 80. The exceptions include the following:
(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;
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(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). A petitioner arguing a timeliness exception
must file a PCRA petition within sixty “days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, there is no dispute that Appellant’s current PCRA petition was
untimely on its face. Contrary to Appellant’s assertion,3 neither the United
States Supreme Court nor the Pennsylvania Supreme Court has held that
3 To the extent Appellant relies on a passing reference to Roper, we note that the full passage cited by Appellant states:
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J-S67022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN BELL : : Appellant : No. 2516 EDA 2017
Appeal from the PCRA Order July 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0637031-1992
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 16, 2019
Appellant Kevin Bell appeals pro se from the order dismissing his serial
petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, which sought relief based on Miller v. Alabama, 567 U.S. 460 (2012).
Appellant asserts that because he was eighteen years old when he committed
the underlying murder, the PCRA court erred by dismissing his petition as
untimely. We affirm.
The factual background to this matter need not be stated in detail. We
note that Appellant, when he was approximately four months past his
eighteenth birthday, killed another individual. Appellant was convicted of
first-degree murder, and the trial court sentenced him to life imprisonment
without the possibility of parole in 1994. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S67022-18
On November 14, 1995, this Court affirmed Appellant’s judgment of
sentence, and the Supreme Court of Pennsylvania denied Appellant’s petition
for allowance of appeal on May 9, 1996. Thereafter, Appellant filed several
unsuccessful PCRA petitions.
Appellant filed the instant pro se PCRA petition on August 13, 2012,
claiming that Miller applied to his case.1 Appellant submitted an amended
PCRA petition on March 23, 2016, following the ruling in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). The PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition. Appellant filed a response
reiterating his claim that Miller extended to defendants over the age of
eighteen and that equal protection principles demanded that he be entitled to
relief. The court dismissed Appellant’s instant PCRA petition without a hearing
on July 17, 2017. Appellant filed a timely notice of appeal.
Appellant filed a timely court-ordered concise statement of matters
complained of on appeal under Pa.R.A.P. 1925(b). The PCRA court filed an
opinion pursuant to Pa.R.A.P. 1925(a) in which it concluded that
[Appellant] was over the age of eighteen at the time of the offense, placing his sentence outside the reach of the Supreme Court’s Miller decision. Therefore, [Appellant] has failed to invoke [the newly recognized constitutional right] exception, and his petition must be dismissed as untimely.
PCRA Ct. Op., 7/17/17, at 1 (unpaginated).
____________________________________________
1 Appellant filed his petition within sixty days of the date that Miller was issued.
-2- J-S67022-18
Appellant raises the following question for our review:
1. Whether the unconstitutional sentencing statute under Miller, 18 Pa.C.S. [§] 1102(a), is also unconstitutional for vagueness rendering [A]ppellant’s sentence unlawful?
2. Whether [A]ppellant’s PCRA petition satisfied a statutory exception to the PCRA’s jurisdictional time-bar?
3. Whether under the 14th Amendment’s ‘Equal Protection Clause,’ because of his youth, [A]ppellant is entitled to the same relief under Miller as the class of youth labeled juveniles?
Appellant’s Brief at 2 (reordered to facilitate disposition).
As to Appellant’s first question, we note that Appellant suggests that 18
Pa.C.S. § 1102(a) is unconstitutionally vague. However, Appellant has
abandoned that argument on appeal. See id. at 27 (abandoning Appellant’s
third claim); Pa.R.A.P. 2119(a). In any event, we note that Appellant did not
raise this claim in his PCRA petition or response to the PCRA court’s Rule 907
notice or assert that it was raised in a timely fashion. See PCRA Pet., 8/13/12;
Resp. to Rule 907 Notice of Intent to Dismiss, 4/28/17; Pa.R.A.P. 302(a).
Therefore, we decline to consider this issue.2
As to Appellant’s final two questions presented, we summarize
Appellant’s arguments together as they are interrelated. Appellant asserts
that he established a PCRA time-bar exception under 42 Pa.C.S. §
9545(b)(1)(ii), (iii), and (b)(2), because he filed the instant PCRA petition ____________________________________________
2 Even if this claim were not waived, we are without jurisdiction to consider it because Appellant has failed to meet a timeliness exception to the PCRA’s time-bar as discussed in further detail below.
-3- J-S67022-18
within sixty days of Miller. According to Appellant, “[t]he facts that . . .
juvenile offenders [are] in their transitory phase of adolescence and [their]
potential for reform [makes them] less culpable than adult offenders[,]
making a sentence of life without parole unconstitutional for them[,] were
unknown to [A]ppellant[.]” Appellant’s Brief at 12. Appellant asserts that
Miller adopted the proposition that “the qualities that distinguish juveniles
from adults do not disappear when an individual turns 18.” Id. at 15 (citing
Roper v. Simmons, 543 U.S. 551, 574 (2005)). He further asserts that
denying the benefits of Miller to people over the age of eighteen would violate
equal protection principles.
In considering an order denying a PCRA petition, our standard of review
is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016) (citations
omitted).
The PCRA provides for three statutory exceptions to its timeliness
requirements, which apply in limited circumstances as set forth in 42 Pa.C.S.
§ 9545(b)(1). Id. at 80. The exceptions include the following:
(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;
-4- J-S67022-18
(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). A petitioner arguing a timeliness exception
must file a PCRA petition within sixty “days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, there is no dispute that Appellant’s current PCRA petition was
untimely on its face. Contrary to Appellant’s assertion,3 neither the United
States Supreme Court nor the Pennsylvania Supreme Court has held that
3 To the extent Appellant relies on a passing reference to Roper, we note that the full passage cited by Appellant states:
Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson [v. Oklahoma, 487 U.S. 815 (1988)] drew the line at 16. In the intervening years the Thompson plurality’s conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.
Roper, 543 U.S. at 574. Similarly, the United States Supreme Court, in Miller, 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 567 U.S. at 465 (emphasis added).
-5- J-S67022-18
Miller establishes a newly-recognized constitutional right for petitioners who
were eighteen years or older at the time of the offense. See Commonwealth
v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (noting “a contention that a
newly-recognized constitutional right should be extended to others does not
render a petition seeking such an expansion of the right timely pursuant to
section 9545(b)(1)(iii).” (emphasis, brackets, and citation omitted)).
Furthermore, it is well-settled that a judicial decision “does not amount to a
new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v.
Watts, 23 A.3d 980, 987 (Pa. 2011).
Accordingly, since Appellant was eighteen years old at the time he
committed first-degree murder, we agree with the PCRA court that Appellant
does not meet the timeliness exception in section 9545(b)(1)(ii) or (iii)
regarding a newly discovered fact or a newly recognized constitutional right
based on Miller and Montgomery. Therefore, we agree that the PCRA court
was without jurisdiction to address the merits of Appellant’s claims, and we
discern no error in the PCRA court dismissing Appellant’s PCRA petition as
untimely. See Furgess, 149 A.3d at 94; Secreti, 134 A.3d at 79-80;
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding a
defendant must comply with the PCRA’s timeliness requirements to raise an
equal protection claim).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/16/19
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