J-S57036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GASPER SIMON

Appellant No. 556 EDA 2014

Appeal from the PCRA Order entered January 9, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No: CP-46-CR-0000602-2007

BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014

Appellant Gasper Simon1appeals from the January 9, 2014, order2of 

the Court of Common Pleas of Montgomery County (PCRA court), which 

dismissed as untimely his request for collateral relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons set 

forth below, we affirm.3 

____________________________________________

1 Although Appellant initiated this appeal pro se, he is now represented by 

counsel. On March 11, 2014, a private attorney entered her appearance on 

Appellant’s behalf.

2 Appellant erroneously believes the order was filed on January 6, 2014, 

which merely is the date of the order. As the docket indicates, the PCRA 

court filed its order dismissing Appellant’s petition on January 9, 2014. 

Accordingly, we have corrected the caption to reflect the right filing date of 

the order.

3 On its face, Appellant’s February 11, 2014, pro se notice of appeal is 

untimely, because he filed it more than thirty days after the entry of the 

PCRA court’s January 9, 2014 order. Relying on the prisoner mailbox rule, 

(Footnote Continued Next Page)
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The facts and procedural history underlying this appeal are 

undisputed. As the PCRA court summarized:

On December 26, 2006, [Appellant] shot and killed Juan Lopez. 

[Appellant], 16 years of age (DOB: August 25, 1990) at the 

time, was charged as an adult.

 . . . .

On August 20, 2007, [Appellant] entered a plea of guilty to 

third-degree murder and firearms carried without a license. 

Following a presentence report and psychological evaluation, on 

November 14, 2007, [Appellant] was sentenced to incarceration 

for 15-30 years on the 3rd degree murder conviction, with a five 

(5) year consecutive probation on the firearms conviction. No 

direct appeal was filed.

PCRA Opinion, 4/2/14, at 2-3. On July 3, 2012, Appellant filed a PCRA 

petition, alleging, inter alia, claims for ineffective assistance of trial counsel 

and raising violation of a constitutional right under Miller v. Alabama, 132 

S. Ct. 2455 (2012).4 Finding it lacked jurisdiction because Appellant’s 

petition was untimely and none of the PCRA’s timeliness exceptions applied, 

the PCRA court dismissed the petition.

(Footnote Continued) _______________________

however, we decline to quash the appeal. “[A] pro se prisoner’s appeal shall 

be deemed filed on the date that the [prisoner] places the document in the 

hands of prison officials or in the prison mailbox.” Smith v. Pennsylvania 

Bd. Of Probation and Parole, 686 A.2d 278, 279 (Pa. 1996). Instantly, 

the record indicates that Appellant’s pro se notice of appeal was dated 

February 1, 2014, and postmarked February 3, 2014. Accordingly, this 

appeal is timely. 

4 The Court in Miller held that “[m]andatory life without parole for those 

under the age of 18 at the time of their crimes violates the Eighth 

Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132 

S. Ct. at 2460 (emphasis added). 
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On appeal, 5 Appellant raises two issues for our review:

[1.] Did the [PCRA court] err in dismissing Appellant’s first 

[PCRA] [p]etition, filed on July 3, 2012, as untimely when said 

filing specifically relied upon newly issued case law from the 

United States Supreme Court regarding juvenile offenders?

[2.] Did the [PCRA court] err in dismissing Appellant’s first 

[PCRA] [petition] without determining the merits of the case, 

following the United States Supreme Court’s ruling in [Miller] 

regarding juvenile offenders and where said petition alleged 

ineffective assistance of trial counsel for failing to maintain 

Appellant’s direct appeal rights by failing to file any post[-

]sentence appeals despite a specific written request by Appellant 

that an appeal be filed?

Appellant’s Brief at 5. 

As a threshold matter, we must determine whether the court erred in 

dismissing as untimely Appellant’s PCRA petition. The PCRA contains the 

following restrictions governing the timeliness of any PCRA petition. 

(b) Time for filing petition.--

(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 

____________________________________________

5

“In PCRA proceedings, an appellate court’s scope of review is limited by the 

PCRA’s parameters; since most PCRA appeals involve mixed questions of 

fact and law, the standard of review is whether the PCRA court’s findings are 

supported by the record and free of legal error.” Commonwealth v. Pitts, 

981 A.2d 875, 878 (Pa. 2009) (citations omitted). 
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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. 

(2) Any petition invoking an exception provided in paragraph (1) 

shall be filed within 60 days of the date the claim could have 

been presented. 

(3) For purposes of this subchapter, a judgment 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. 

42 Pa.C.S.A. § 9545(b) (emphasis added). Section 9545’s timeliness 

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 

2014). 

Here, the record reflects the judgment of sentence became final on 

December 14, 2007, i.e., at the expiration of the time for filing a direct 

appeal in this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). 

Because Appellant had one year from December 14, 2007 to file his PCRA 

petition, the current filing is untimely on its face given it was filed on July 3, 

2012.

The one-year time limitation, however, can be overcome if a petitioner 

alleges and proves one of the exceptions set forth in Section 9545(b)(1)(i)-

(iii) of the PCRA. Here, Appellant argues that Miller recognized a new 

constitutional right that must be applied to him retroactively under Section 

9545(b)(1)(iii). As the PCRA court noted, the issue of Miller’s retroactive 

application has been settled by our Supreme Court’s recent decision in 

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). The Supreme 

Court held that Miller did not apply retroactively to cases on collateral 
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appeal. Cunningham, 81 A.3d at 9-10 (noting that “nothing in 

[a]ppellant’s arguments persuades us that Miller’s proscription of imposition 

of mandatory life-without-parole sentences upon offenders under the age of 

eighteen at the time their crimes were committed must be extended to those 

whose judgments of sentence were final as of the time of Miller’s

announcement”). 

Instantly, because it is undisputed that Appellant’s sentence became 

final before the Miller decision was issued and our Supreme Court in 

Cunningham has ruled that Miller does not apply retroactively to cases on 

collateral review, we conclude that Appellant does not satisfy the timeliness 

exception under Section 9545(b)(1)(iii).6 Thus, given the fact that Appellant 

filed his PCRA petition approximately three and one-half years after the 

deadline to file the petition had expired and he does not satisfy any of the 

timeliness exceptions under Section 9545 of the PCRA, the PCRA court did 

not err in dismissing his petition as untimely. 

Order affirmed. 

____________________________________________

6 Appellant’s attempt to fit his case within Miller’s narrow holding is bold. A 

cursory understanding of the Court’s holding in Miller would suggest that it 

applies only to juveniles subject to mandatory sentences of life 

imprisonment. Appellant was sentenced to fifteen to thirty years’ 

imprisonment. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2014