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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALI SHABAZZ :
:
Appellant : No. 2425 EDA 2017
Appeal from the PCRA Order July 11, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1007111-2002
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 27, 2018
Appellant, Wali Shabazz, appeals from the July 11, 2017 Order
dismissing as untimely his second Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we
affirm.1
We briefly summarize the facts and procedural history as follows. On
June 28, 2004, a jury convicted Appellant of Second-Degree Murder, Burglary,
and Carrying Firearms in Public in Philadelphia.2 The charges against
Appellant arose from a July 27, 2002 incident during which Appellant fatally
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1 Appellant has also filed a “Renewal Motion to Stay.” We deny this Motion.
2 18 Pa.C.S. §§ 2502(b), 3502, and 6108, respectively.
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shot Andre Thompson. Appellant was nearly 24 years old at the time of the
crime.3
On September 15, 2004, the lower court sentenced Appellant to an
aggregate term of life imprisonment.4 On January 4, 2008, this Court affirmed
Appellant’s Judgment of Sentence, and on September 3, 2008, the
Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal. See Commonwealth v. Shabazz, 947 A.2d 832 (Pa. Super. 2008)
(unpublished memorandum), appeal denied, 956 A.2d 434 (Pa. 2008).
Appellant’s Judgment of Sentence, thus, became final on December 2, 2008.5
Appellant’s first PCRA Petition, which he filed in 2009, garnered no relief.
On March 23, 2016, Appellant filed a pro se “Supplemental” PCRA Petition,
which the PCRA court properly treated as a second PCRA Petition. Appellant
claimed that, although he was 23 years old at the time of the crimes forwhich
he was convicted, he was entitled to relief pursuant to Montgomery v.
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3 Appellant was born on August 7, 1978.
4 The court imposed a life sentence for Appellant’s Murder conviction and a
consecutive term of 18 to 60 months’ incarceration for his firearms conviction.
Appellant’s Burglary conviction merged for sentencing purposes.
5 See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment [of sentence ]becomes 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.”); U.S. Supreme Court Rule 13.
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Louisiana, 136 S.Ct. 718 (U.S. 2016), and Miller v. Alabama, 567 U.S. 460
(2012).6
On April 7, 2017, Appellant filed a second “supplemental” Petition
wherein he raised an ineffectiveness of counsel claim. In particular, Appellant
averred that his trial counsel was ineffective because he “introduced
testimony/evidence to the jury that opened the door” to evidence that
damaged Appellant and that his first PCRA counsel was ineffective for failing
to review Appellant’s trial transcripts and for failing to file an amended
Petition. Supplemental Petition, 4/7/17.
On May 17, 2017, the PCRA court issued a Notice of Intent to Dismiss
Without a Hearing pursuant to Pa.R.Crim.P. 907. On May 31, 2017, Appellant
filed a response to the court’s Rule 907 Notice. On July 11, 2017, the PCRA
court dismissed the instant Petition. This pro se appeal followed.
Appellant raises the following issues on appeal:
1. Is [A]ppellant entitled to relief in the form of resentencing in
violation of his 8th and 14th United States Constitutional
Amendment rights, Cruel and Unusual Punishment based on
the facts that [A]ppellant had an immature brain relied upon
from the neuroscience and brain development theory in
scientific studies for underdeveloped brains in individuals from
18 to 25 years of age. It is cruel and unusual punishment to
sentence an individual to life without parole with an immature
brain, and petitioner is similarly situated under the Equal
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6 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470. The U.S. Supreme Court held in
Montgomery that its decision in Miller applies retroactively. Montgomery,
136 S.Ct. at 732.
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Protection Clause as those who are under the age of 18 with
underdeveloped brains?
2. Is [A]ppellant entitled to relief in the form of an evidentiary
hearing and/or a new trial where trial and PCRA counsel
provided [A]ppellant with ineffective assistance of [c]ounsel in
[v]iolation of the United States Constitution Sixth and
Fourteenth Amendment for trial counsel’s failure to
meaningfully [a]mend PCRA Petition, and file [F]inley[7] letter
with this claim [Appellant] is addressing to the said Court is
meritorious?
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Before we may consider the merits of Appellant’s claim, we must
determine whether there is jurisdiction to consider the PCRA petition. “The
timeliness of a post-conviction petition is jurisdictional.” Commonwealth v.
Furgess, 149 A.3d 90, 92 (Pa. Super. 2016) (citation omitted). Generally, a
petition for relief under the PCRA, including a second or subsequent petition,
must be filed within one year of the date the judgment became final unless
the petition alleges and the petitioner proves one of the three exceptions to
the time limitations for filing the petition set forth in Section 9545(b)(1) of the
PCRA,8 and the petitioner filed the petition within 60 days of the date the
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7 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
8 (b) Time for filing petition.--
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exception could first have been presented.9 Id. Here, Appellant’s Judgment
of Sentence became final in 2008, after our Supreme Court denied review and
the period to petition the United States Supreme Court subsequently expired.
Appellant’s current PCRA Petition, filed in March 2016, is patently untimely.
With respect to his Miller claim, in his Brief to this Court Appellant
attempts to invoke the timeliness exception under Section 9545(b)(1)(iii),
alleging that his illegal sentence claim is based on a newly recognized
constitutional right, which is retroactive in application. See Appellant’s Brief
at 10 (citing Montgomery, supra.).
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(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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;
(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).
9 See 42 Pa.C.S § 9545(b)(2).
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As long as this court has jurisdiction over the matter, a legality of
sentence issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA Petition over which we
have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto.”); Commonwealth v. Miller, 102 A.3d 988,
995-96 (Pa. Super. 2014) (explaining that the decision in Alleyne does not
invalidate a mandatory minimum sentence when presented in an untimely
PCRA Petition). Appellant filed the instant PCRA Petition on March 23, 2016,
which was within 60 days of Montgomery (decided January 25, 2016). He,
thus, satisfied the diligence requirement set forth in Section 9545(b)(2).
Nevertheless, Appellant’s Miller claim fails because he was nearly 24
years old at the time he committed the instant murder. Miller only applies to
individuals who were juveniles, i.e., under 18 years old, when they committed
the crime on which their current conviction is based. See Commonwealth
v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014). Further, this Court has previously
refused to render relief on an appellant’s brain science argument. See
Commonwealth v. Furgess, 149 A.3d at 94 (rejecting the 19-year-old
appellant’s argument based on neuroscientific theories of brain development
that he is entitled to PCRA relief because he was a “technical juvenile” at the
time he committed his crimes).
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In his second issue, Appellant claims the PCRA court erred in finding
that his ineffective assistance of trial and PCRA counsel claim lacked merit.
He characterizes his trial counsel’s performance as “inexcusable, deficient, and
[having] prejudiced” Appellant by “open[ing] the door” in his cross-
examination to testimony that was damaging to Appellant. Appellant’s Brief
at 24. He further contends that PCRA counsel was ineffective because he
failed to investigate whether Appellant’s collateral claims had merit, and,
instead, merely filed a “Finley letter.” Id. at 28-29. Because Appellant has
not pleaded or proved the applicability of any of the PCRA’s timeliness
exceptions, we are without jurisdiction to review the merits of this claim.
Order affirmed. Renewal Motion to Stay denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/18
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