Com. v. Gamble, B.

• Court: Superior Court of Pennsylvania
• Decided: February 12, 2019
• Docket: 1843 EDA 2018
• Status: Unpublished

Opinion

J-S02042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRADFORD GAMBLE : : Appellant : No. 1843 EDA 2018

Appeal from the PCRA Order Entered May 21, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0209741-1976

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED FEBRUARY 12, 2019

Appellant, Bradford Gamble, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed as untimely

his serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On July 22, 1976, a jury convicted Appellant of first-

degree murder and various weapons offenses. The court sentenced Appellant

on December 2, 1976, to life imprisonment for the murder conviction and

imposed lesser terms of imprisonment for the weapons offenses. Our

Supreme Court affirmed the judgment of sentence on July 6, 1979. See

Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979).

On March 21, 2016, Appellant filed the current serial pro se PCRA

petition. The court issued notice per Pa.R.Crim.P. 907, on November 17,

2017. Appellant did not respond. On May 21, 2018, the PCRA court dismissed J-S02042-19

the petition as untimely. Appellant timely filed a pro se notice of appeal on

June 14, 2018. No Pa.R.A.P. 1925(b) statement was ordered or filed.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent 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 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.A. § 9545(b)(3). The

statutory exceptions to the PCRA time-bar allow for very limited circumstances

under which the late filing of a petition will be excused; a petitioner asserting

a timeliness exception must file a petition within 60 days of when the claim

could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s judgment of sentence became final on October 4,

1979, upon expiration of the time for filing a petition for writ of certiorari with

the U.S. Supreme Court. See U.S.Sup.Ct.R. 22 (effective July 1, 1970;

allowing 90 days to file petition for writ of certiorari with U.S. Supreme Court).

Appellant filed the current PCRA petition on March 21, 2016, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“new constitutional right” exception to the statutory time-bar per Section

9545(b)(1)(iii), claiming he is entitled to relief under Miller v. Alabama, 567

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U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding sentence of

mandatory life imprisonment without possibility of parole, for those under age

of 18 at time of their crimes, violates Eighth Amendment’s prohibition on cruel

and unusual punishments) and Montgomery v. Louisiana, ___ U.S. ___,

136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller applies retroactively

to cases on state collateral review). Nevertheless, Appellant concedes he was

19 years old at the time of the offenses at issue. Thus, Miller and

Montgomery do not apply. Furthermore, this Court has previously rejected

the novel argument that relief under Miller and Montgomery should be

extended to individuals under 25 years old because the brain is not developed

fully until that age. See Commonwealth v. Furgess, 149 A.3d 90

(Pa.Super. 2016) (holding appellant who was 19 years old at time of offenses

was not entitled to relief under Miller and Montgomery on collateral review;

rejecting “technical juvenile” argument). Therefore, the court properly

dismissed Appellant’s petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/12/19

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