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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KERMIT T. PITTMAN
Appellant No. 996 MDA 2016
Appeal from the PCRA Order May 11, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000554-2011
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 10, 2017
Appellant, Kermit T. Pittman, appeals from the May 11, 2016 order
denying his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
Appellant was arrested and charged with first degree murder, second
degree murder, and robbery as a result of the January 10, 2011 death of
Florentine Lopez.1 See Post-Sentence Memorandum and Order, 9/14/12, at
1-2. A jury convicted Appellant of the above charges. Id. The trial court
proceeded immediately to sentencing and imposed a mandatory life
sentence for first degree murder and a concurrent five-year sentence for
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1
18 Pa.C.S. §§ 2502, 3701.
*
Former Justice specially assigned to the Superior Court.
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robbery. Id. The sentence for second degree murder merged with the
sentence for first degree murder. Id.
Appellant timely filed a direct appeal. His judgment of sentence was
affirmed October 8, 2013. See Commonwealth v. Pittman, 87 A.3d 877
(Pa. Super. 2013) (unpublished memorandum). The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on April 9, 2014.
See Commonwealth v. Pittman, 89 A.3d 661 (Pa. 2014) (unpublished
memorandum).
On March 4, 2016, Appellant pro se filed an untimely petition seeking
PCRA relief. Counsel was appointed to represent Appellant and filed a
Turner/Finley letter.2 The PCRA court gave Appellant notice pursuant to
Pa.R.Crim.P. 907 that his petition would be dismissed within twenty days.
Appellant filed a response to the court’s notice. On May 11, 2016, the court
formally dismissed Appellant’s petition. On July 28, 2016, the court granted
counsel’s petition to withdraw.
Appellant timely appealed. The PCRA court did not issue an order
pursuant to Pa.R.A.P. 1925(b). In lieu of a formal opinion, it adopted its
order dismissing Appellant’s amended PCRA and notice of intent to dismiss.
Herein, Appellant presents three issues for our review:
I. Did [the] trial court err when it dismissed Appellant’s petition
without a hearing on Appellant’s claims of cruel and unusual
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2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
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punishment, namely that the Eighth Amendment forbids a
sentencing scheme that mandates life without possibility of
parole for juvenile offenders, where Pennsylvania’s mandatory
sentencing scheme violates the proportionality principle,
imposing life sentences on juveniles without any individualized
considerations.
II. Did [the] trial court err when it dismissed Appellant’s petition
without a hearing on Appellant’s claims of equal protection
violations, namely that the Equal Protection Clause of the
Fourteenth Amendment requires that the distinction made have
some relevant to the purpose for which the classification is
made, where Article V § 16(q)(ii) of the Pennsylvania
Constitution defines Appellant as a juvenile.
III. Did the trial court err when it dismissed Appellant’s petition
without a hearing [on] Appellant’s claims of due process
violations, namely that the Due Process Clause gives Appellant
the Eighth Amendment protections guaranteed under the United
States Constitution, where no individualized considerations were
made and Appellant was a juvenile sentenced to life without
parole.
Appellant’s Brief at 4.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
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PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s petition is untimely.3 Accordingly, in order to reach the
merits of his issues, he must plead and prove one of the exceptions to the
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3
Appellant’s judgment of sentence became final on July 8, 2014, at the
expiration of the ninety-day time period for seeking review with the United
States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review); Commonwealth v. Owens, 718 A.2d
330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13 grants an Appellant
ninety days to seek review with the United States Supreme Court). Thus,
Appellant had until July 8, 2015, to file a timely PCRA petition.
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time bar. See Bennett, 930 A.2d at 1267. Appellant has failed to do so.
In his brief he argues, incorrectly, that his sentence is unconstitutional
because he was a juvenile who received a mandatory life sentence.4
Appellant makes no attempt to argue that this claim meets a timeliness
exception, nor could he do so. Even if Appellant had properly invoked the
newly-recognized constitutional right exception, this court has previously
rejected the argument that offenders who are over eighteen may be
considered “technical juveniles” per Miller v. Alabama.5 See, e.g.,
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016).
Accordingly, the PCRA court’s determination that Appellant’s petition is
untimely and meets no timeliness exception is supported by the record and
free of legal error. Ragan, 923 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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4
The record reflects that Appellant was over eighteen years of age at the
time he committed the murder. See Secure Docket, at 2; Post-Sentence
Memorandum and Order, 9/14/12, at 1-2.
5
Miller v. Alabama, 132 S. Ct. 2455 (2012).
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Com. v. Pittman, K.
Combined Opinion