J-S03003-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

DAVID JACKSON,

Appellant No. 2954 EDA 2017

Appeal from the PCRA Order Entered August 22, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0118091-1977

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 03, 2019

Appellant, David Jackson, appeals pro se from the post-conviction 

court’s August 22, 2017 order denying, as untimely, his petition filed under 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The facts underlying Appellant’s conviction are not relevant to his 

present appeal. We need only note that on April 25, 1977, he pled guilty to 

second-degree murder, robbery, and related offenses. That same day, the 

court sentenced Appellant to a mandatory term of life imprisonment, without 

the possibility of parole, as well as a concurrent term of 10 to 20 years’ 

incarceration for robbery. 

On January 15, 1997, Appellant filed his first, pro se PCRA petition. That 

petition was denied by the PCRA court, and we affirmed on appeal. 
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Commonwealth v. Jackson, No. 1895 EDA 2001, unpublished 

memorandum (Pa. Super. filed Aug. 7, 2002). 

On August 23, 2012, Appellant filed his second, pro se PCRA petition, 

which underlies the present appeal. Appellant filed an amended petition on 

March 25, 2016. On May 24, 2017, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition without a hearing. While 

Appellant filed a response to the Rule 907 notice, the court entered an order 

dismissing his petition on August 22, 2017. 

Appellant filed a timely, pro se notice of appeal. Herein, he states three 

issues for our review:

[I.] Did the PCRA court err in rejecting Appellant’s claim that 

Miller v. Alabama’s[1] constitutional requirement of 

consideration of age[-]related factors prior to imposing life 

without parole sentences applies to [Appellant] who was 

considered a child under [Pennsylvania] law and possessed those 

characteristics of youth identified as constitutionally significant for 

sentencing purposes by the U.S. Supreme Court?

[II.] Did the PCRA court err in rejecting Appellant’s claim that 

Pennsylvania law permitting mandatory sentences of life without 

parole for crimes committed by 18 [y]ear olds lack[s] a rational[]

basis given Miller’s prohibition against such sentences for 

offenders aged 17 and younger and therefore violates the Equal 

Protection Clauses of the Pennsylvania and U.S. Constitutions?

[III.] Did the court err when it did[ not] consider [Appellant’s] 

claim that: “Any life without parole sentence for a teen deemed 

‘developing adolescence’ convicted of second[-]degree ... 

murder[] is inconsistent with adolescent development and 

neuroscience research and unconstitutional pursuant to Miller 

and Graham v. Florida[, 560 U.S. 48 (2010)]?

____________________________________________

1 Miller v. Alabama, 567 U.S. 460 (2012).
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Appellant’s Brief at iii.

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations implicate 

our jurisdiction and may not be altered or disregarded in order to address the 

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 

2007). Under the PCRA, any petition for post-conviction relief, including a 

second or subsequent one, must be filed within one year of the date the 

judgment of sentence becomes final, unless one of the following exceptions 

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(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 States 

or the Supreme Court of Pennsylvania after the time 
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period provided in this section and has been held by 

that court to apply retroactively. 

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition 

was filed, section 9545(b)(2) required that any petition attempting to invoke 

one of these exceptions “be filed within sixty days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).2

Here, Appellant’s judgment of sentence became final in 1997, making 

his present petition, filed in 2012, patently untimely. Consequently, for this 

Court to have jurisdiction to review the merits thereof, Appellant must prove 

that he meets one of the exceptions to the timeliness requirements set forth

above. 

In this regard, Appellant insists that he meets the new constitutional 

rule exception of section 9545(b)(1)(iii) based on the rationale of Miller, in 

which the United States Supreme Court held that “mandatory 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, 

567 U.S. at 465 (emphasis added). In Montgomery v. Louisiana, 136 S.Ct. 

718 (2016), the High Court held that Miller created a new substantive right 

that applies retroactively in cases on state collateral review. Montgomery, 

136 S.Ct. at 736. While Appellant acknowledges that he was 18 years old at 

the time he committed the murder for which his mandatory, life-without-

____________________________________________

2 A recent amendment to section 9545(b)(2), which became effective on 

December 24, 2018, changed the language to require that a petition “be filed 

within one year of the date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2).
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parole sentence was imposed, he argues that the rationale expressed in Miller 

must be applied to him under equal protection principles. More specifically,

Appellant contends “that considering the science and social science that the 

Court validated and used to decide Miller, that he at the age of 18 years, one 

month and 7 days old, under the Equal Protection Clause of the U.S. and 

Pennsylvania[] Constitutions, should receive a mitigated hearing for 

resentencing just as the adolescent who [is] 17 [and] 364 days would.” Id. 

at 2. 

Unfortunately for Appellant, our Court recently rejected the same equalprotection argument that Appellant presents herein. More specifically, 

[i]n Commonwealth v. Montgomery, [181 A.3d 359 (Pa. 

Super. 2018) (en banc) (hereinafter, “Commonwealth v. 

Montgomery”), the] petitioner, who was 22 years old at the time 

he committed murder, for which he was sentenced to life 

imprisonment without the possibility of parole, argued that his 

brain was not fully developed. [The] [p]etitioner contended that 

he satisfied the new constitutional rule exception to the PCRA 

time-bar because he was entitled to relief under Miller, made 

retroactive by [the United States Supreme Court’s decision in] 

Montgomery. We disagreed, holding that [the] petitioner failed 

to show that the new constitutional rule extended to individuals 

who had committed homicides after they reached the age of 18. 

Commonwealth v. Montgomery, 181 A.3d at 366. Relying on 

[Commonwealth v.] Furgess[, 149 A.3d 90 (Pa. Super. 2016),]

and [Commonwealth v.] Cintora, [69 A.3d 759 (Pa. Super. 

2013),] this Court held that simply contending that a newlyrecognized constitutional right should be extended to others does 

not satisfy the new constitutional rule exception to the PCRA’s 

timeliness requirement. Commonwealth v. Montgomery, 181 

A.3d at 366 (citing Furgess, 149 A.3d at 94, and Cintora, 69 

A.3d at 764). We also found meritless [the] petitioner’s argument 

that Furgess was distinguishable. We stated:
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[The petitioner] argues that Furgess is distinguishable from 

the case at bar because in Furgess the petitioner only 

raised a claim under the Eighth Amendment while he also 

raises a claim under the Fourteenth Amendment’s Equal 

Protection Clause. This argument, however, is misplaced. 

Neither the Supreme Court of the United States nor our 

Supreme Court has held that Miller announced a new rule 

under the Equal Protection Clause. Instead, Miller only 

announced a new rule with respect to the Eighth 

Amendment. Thus, contrary to [the] [petitioner’s] assertion, 

his Equal Protection Clause argument is also an attempt to 

extend Miller’s holding.

Commonwealth v. Montgomery, 181 A.3d at 366 (emphasis 

added). Notably, we declined [the] petitioner’s invitation to 

overturn Furgess, stating that “the three-judge panel’s analysis 

is correct[.]” Id. at 367.

Commonwealth v. Lee, --- A.3d ---, 2019 PA Super 64 (Mar. 1, 2019)

(footnotes omitted, some brackets added and some added in Lee). 

Additionally, in Lee, an en banc panel of this Court again held that 

numerical age is the sole factor in determining whether Miller applies, and 

Miller’s rationale cannot be extended to those 18 and over at the time of their 

crimes “[u]ntil the United States Supreme Court or the Pennsylvania Supreme 

Court recognizes a new constitutional right in a non-juvenile offender....” Id.

at *9. Consequently, we are bound by this precedent to conclude that 

Appellant cannot rely on Miller to meet the timeliness exception of section 

9545(b)(1)(iii). Thus, the PCRA court properly denied his petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/19