J-S80033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWAYNE BROWN, :
:
Appellant : No. 923 EDA 2017
Appeal from the PCRA Order February 17, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0307362-1996
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2018
Dwayne Brown (“Brown”) appeals, pro se, from the Order dismissing
his Petition for Writ of Habeas Corpus.1 We affirm.
A jury found Brown guilty of murder of the first degree, possession of
an instrument of crime, criminal conspiracy, and attempted murder. The
trial court imposed an aggregate sentence of life in prison without parole.
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1 In his Petition for Writ of Habeas Corpus, Brown only challenges the
legality of his sentence. Because Brown filed his Petition after his judgment
of sentence became final, and the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546, provides a remedy for his claim, the Petition was
properly treated as filed pursuant to the PCRA. See 42 Pa.C.S.A. § 9542
(providing that “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram nobis.”); see
also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(stating that “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.”) (citation omitted).
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This Court affirmed the judgment of sentence, and the Supreme Court of
Pennsylvania denied allowance of appeal. See Commonwealth v. Brown,
739 A.2d 582 (Pa. Super. 1999) (unpublished memorandum), appeal
denied, 749 A.2d 465 (Pa. 2000). On June 12, 2000, the United States
Supreme Court denied Brown’s Petition for writ of certiorari. See Brown v.
Pennsylvania, 530 U.S. 1234 (2000).
Brown filed four previous PCRA Petitions, all of which the PCRA court
either denied or dismissed. On March 24, 2016, Brown filed the instant
Petition.2 In January 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice
of its intent to dismiss the Petition, and Brown filed a Response. The PCRA
court then dismissed Brown’s fifth Petition. Brown filed a timely Notice of
Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Brown raises the following question for our review:
“Whether [Brown] is entitled to post conviction relief based on newly
discovered mitigating evidence regarding brain science and social science
study?” Brief for Appellant at 3 (some capitalization omitted).
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2 We note that Brown’s appeal from the dismissal of his fourth PCRA Petition
was pending at the time he filed the instant Petition. See Commonwealth
v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that a PCRA court cannot
entertain a new PCRA petition when a prior petition is under appellate
review). However, this Court’s decision affirming the dismissal of Brown’s
fourth PCRA Petition was decided on July 11, 2016, and Brown did not seek
further review. See Commonwealth v. Brown, 143 A.3d 418 (Pa. Super.
2016). Because Brown’s fifth Petition was not reviewed or decided until
Brown’s appeal as to his fourth Petition had been completed, we will
examine the instant appeal.
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“On appeal from the [dismissal] of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is supported
by the record and free of legal error.” Commonwealth v. Nero, 58 A.3d
802, 805 (Pa. Super. 2012).
Initially, under the PCRA, any PCRA petition “including a second or
subsequent petition, shall be filled within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes final “at the conclusion of direct review, including
discretionary review in the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s
timeliness requirements are jurisdictional in nature and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Brown’s Petition is facially untimely under the PCRA. See 42
Pa.C.S.A. § 9545(b). However, Pennsylvania courts may consider an
untimely petition if the appellant can explicitly plead and prove one of three
exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition
invoking one of these exceptions “shall be filed within 60 days of the date
the claim could have been presented.” Id. § 9545(b).
Here, Brown invokes the newly-discovered facts exception at section
9545(b)(1)(ii), based upon the decisions in Montgomery v. Louisiana, 136
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S. Ct. 718 (2016), and Miller v. Alabama, 567 U.S. 460 (2012).3 In
Miller, the United States Supreme Court held that sentencing schemes that
mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 567 U.S. 465. The
Court reasoned that in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 479. In Montgomery the United State Supreme
Court held that Miller applies retroactively. See Montgomery, 136 S. Ct.
at 736.
Brown’s reliance upon Miller and Montgomery as newly-discovered
facts is without merit, as judicial decisions do not constitute newly-
discovered facts for the purposes of Section 9545(b)(1)(ii). See
Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).4 Even if Brown
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3We note that Brown filed the instant Petition within 60 days of the
Montgomery decision.
4 To the extent Brown invokes the newly-discovered facts exception based
upon studies and data that revealed that the brain does not fully develop
until the age of twenty-five years old, we conclude that Brown has not
exercised due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (stating that “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[.]”). Here,
Brown relies upon information cited in Miller, which was decided in June
2012, nearly four years prior to the filing of the instant Petition.
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had invoked the newly-recognized constitutional right exception, he would
not be entitled to relief under Miller and Montgomery. Indeed, Brown
concedes that he was twenty-two years old when he committed the murder.
See Brief for Appellant at 12; see also Commonwealth v. Furgess, 149
A.3d 90, 94 (Pa. Super. 2016) (noting that “petitioners who were older than
18 at the time they committed murder are not within the ambit of the Miller
decision and therefore may not rely on that decision to bring themselves
within the time-bar exception in Section 9545(b)(1)(iii).”); id. (rejecting
appellant’s argument to extend the Miller holding based upon
neuroscientific theories regarding brain development of persons over the age
of 18).
Based upon the foregoing, the PCRA court properly dismissed Brown’s
PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/18
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Com. v. Brown, D.
Combined Opinion