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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

DONTE JOHNSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1716 EDA 2018 Appeal from the PCRA Order May 11, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR

- 0008687

- 2010

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J. MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 0 4 , 2019 Donte Johnson (Johnson) appeals pro se from the order entered by the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. We affirm. We derive the following relevant facts and procedural history from the trial court’s November 14, 2018 opinion and our independent review of the record. On May 9, 2012, a jury convic ted Johnson of one count each of first

degree murder, rape, involuntary deviate sexual intercourse, robbery, and burglary. 1 Johnson’s conviction stems from his brutal rape and fatal

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. §§ 2502(a), 3121(a)(1), 3123(a)(1), 3701(a)(1)(i), and 3502(a), respectively.J

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strangulation of the victim, Sabina O’Donnell , in a vacant lot after he

e ncountered her riding her bike

. Johnson was eighteen years old at the time of his offense. The trial court sente nced him to a mandatory term of life imprisonment on the murder charge and a consecutive aggregate sentence of not less than forty nor more th an eighty years’ incarcerati on on the remaining offenses. This Court affirmed the judgment of sentence and our Supreme Court denied further review on April 2, 2014. ( See Commonwealth v. Johnson , 87 A.3d 381 (Pa. Super. 2013), appeal denied , 89 A.3d 660 ( Pa. 2014) ). Johnson, acting pro se , filed th is timely PCRA petition on March 18, 2015. Appointed counsel then filed a motion for leave to withdraw and a
Turner / Finley 2 n o - merit letter. After issuing Rule 907 notice, 3 t he PCRA
court entered its order dis m issing the petition and granting counsel’ s request to withdraw

. This timely appeal followed. On appeal, Johnson argues that his life sentence for the murder conviction is unconstitutional pursuant to Miller v. Alabama , 567 U.S. 460

_________________ __________ ______ ____ _______ 2 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

3 See Pa.R.Crim.P. 907(1).J

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(2012). He also raises two claims of ineffect ive assistance of counsel

. We begin by addressing his contention that is sentence is unconstitutional

. 4 By way of background, in Miller , the United States Supreme Court held that it is unconstitutional for states to sentence juvenile homicide defendants to mandatory sentences of life imprisonment without the possibility of parole. See Miller , supra at 465. In Montgomery v. Louisiana , 136 S. Ct. 718 (2016), the Court determined that its Miller holding constituted a substantiv e rule of constitutional law that must be applied retroactively to cases on collateral review. See Montgomery , supra at 736. Johnson acknowledges that the Miller holding does not apply directly to him but nonetheless asserts that it should be extended to apply to defendants under t he age of twenty

- one as similarly situated to juvenile offender s . ( See Johnson’s Brief, at 17

- 23). However, o ur case law is clear that “t he Miller decision applies to only those defendants who were under the age of 18 at the time of their crimes. ” Commonwealth v. Furgess , 149 A.3d 90, 94 (Pa. Super. 2016) (citation omitted). This Court has squarely rejected arguments seeking an extension of Miller to persons convicted of murder who were older at the time of their crimes than the cl a ss of defendants subject to the Miller holding. See id. ; see also Commonwealth v. Rodriguez , 174 A.3d 1130,

_________________ __________ ______ ____ _______ 4 When review ing issues arising from the denial of PCRA relief, we must deter mine whether the PCRA court’ s ruling is supported by the r ecord and free of legal error. See Commonwealth v. Bush , 197 A.3d 285, 286

– 87 (Pa. Super. 2018).J

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1147 (Pa. Super. 2017), appeal denied , 186 A.3d 941 (Pa. 2018) ( rejecting Miller claim where appellant acknowledged that h e was eighteen ye ars old at
time he committed murder but argued that his immature and/or impulsive brain made him similar to juvenile). Accordingly, Johnson is not entitled to PCRA relief based on his contention that Miller should be extended. Turning to Johnson’s ineffective assistance of counsel claims, “i t is well established that counsel is presumed to have rendered effective assistance. ” Commonwealth v. Montalvo , 2019 WL 1338433, at *7 (Pa. filed Mar. 26, 2019) (citation omitted). A court must exam ine “ whether: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his actions or failure to act; and (3) the petit ioner was prejudiced by counsel’ s deficient performance such that there is a reasonable probability that t he result of the proceeding would hav e been different absent counsel’ s error or omission. ” Id. (citation omitted). “A petitioner’ s failure to satisfy any prong of the ineffectiven ess test is fatal to the claim.” Id. (citation omitted). “ We are not
requ ired to analyze the elements of an ineffectiveness claim in any particular order; if a claim fails under any prong of the ineffectiveness test, the Court may proceed to that element first. ” Id. (citation omitted). “ Moreover, counsel cannot be deemed inef fective for failing to raise a meritless claim. ” Id. (citation omitted). Johnson first maintains that trial counsel was ineffective for failing to object to the prosecutor’s comments during closing argume nt that he assertsJ

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were prejudicial and inflammato ry . ( See Johnson’s Brief, at 11

- 16). However, as the PCRA court points out, Johnson did not raise this issue in his PCRA petition. O ur Supreme Court has explained: “Any claim not raised in the PCRA petition is waived an d not cognizable on appeal.” Commonwealth v. Washington , 927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. 302 (a) (“I ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” ). Accordingly, because Johnson did not raise this issue in his PCRA p etition, we cannot consider it on appeal. Last, Johnson maintains that trial counsel was ineffective for failing to investigate two brown hairs tha t were found on the victim ’s body . ( See
J ohnson’s Brief, at 24

- 28). H e describes the potential DNA evidenc e as crucial and exculpatory and argues that it should have been tested. ( See id. ). As the PCRA court explains, this claim lacks merit because: DNA evidence that was tested co nclusively matched [Johnson] . That included DNA from vaginal and anal swabs ta ken from the decedent. ( See N.T. Trial, 5/03/12, at 81

- 82, 86)

. Even assuming arguendo that a DNA test of hairs found on the decedent should show t hat they were not from [Johnson] , that would not have e xculpated [him] in light o f the other DNA evidence i n the case. Moreover, . . . th e evidence at trial of [Johnson’s] guilt was overwhelming, including video surveillance showing him following the victim, conclusive evidence of his semen in the victim’s vagina and anus, and defendant’s full and detailed confession. There is no further investigation of any kind that defe nse counsel could have pursued that would have led to a reasonable probability that the outcome of the trial would have been different. No relief is due.J

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(PCRA Court Opinion, 11/14/18, at 9

- 10) ( citation formatting provided; emphasis in original). After review of the record , we agree with the PCRA court’s assessment and find Johnson’s argument regarding the lack of t esting of two hairs specious. Because counsel cannot be deemed ineffective for fai ling to raise a meritless claim, Johnson’ s final issue fa ils. See Montalvo , supra at *7

. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/4/19