J-S93018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD ALEXANDER BUDA

Appellant No. 2160 EDA 2016

Appeal from the PCRA Order dated June 28, 2016

In the Court of Common Pleas of Wayne County

Criminal Division at No(s): CP-64-CR-0000156-1997

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 03, 2017

Appellant, Edward Alexander Buda, appeals from the order dismissing 

his second petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We affirm.

On January 28, 1998, Appellant pleaded guilty to and was sentenced 

for murder of the first degree1stemming from an incident on August 11, 

1996, in which he and his co-defendants broke into the home of Charles 

Gregg in Wayne County, subdued and duct-taped Mr. Gregg’s hands and 

feet, and each fired a shot from a revolver into Mr. Gregg as he was lying on 

the floor. N.T., 1/28/1998, at 3, 9, 11. It is undisputed that Appellant was 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2502(a).
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18 years old at the time of the crime. Appellant’s Brief at 4; 

Commonwealth’s Brief at 2. Appellant did not file a direct appeal.

On November 20, 1998, Appellant filed his first PCRA petition, which 

was dismissed by the lower court on August 28, 2001. On September 12, 

2001, Appellant filed a notice of appeal to this Court, and we affirmed the 

lower court’s order on August 26, 2002.2 On September 18, 2002, Appellant 

filed a petition for allowance of appeal to the Supreme Court of 

Pennsylvania, which was denied on January 13, 2003.

Appellant filed his current pro se PCRA petition on March 21, 2016, 

asserting that, although Appellant was not under the age of 18 at the time of 

his offense, the reasoning of the United States Supreme Court’s decision in 

Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied to his case 

and his sentence should be vacated. Miller 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.’” 132 S.Ct. at 2460.

On May 31, 2016, the PCRA court entered a notice of intent to dismiss 

without a hearing if Appellant did not respond in writing to the proposed 

dismissal within 20 days, pursuant to Pa. R. Crim. P. 907. In its notice of 

intent to dismiss, the PCRA court stated that Appellant “was eighteen (18) 

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2 Commonwealth v. Buda, No. 2878 EDA 2001 (Pa. Super. Aug. 26, 2002) 

(unpublished memorandum).
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years old when he was convicted and sentenced to life imprisonment without 

parole for Murder of the First Degree” and “therefore is not included in the 

class of offenders explained in Miller.” Notice of Intent to Dismiss, dated 

May 31, 2016, at 1.3 The trial court hence gave notice that it intended to 

dismiss on the merits because Miller did not apply.

On June 22, 2016, having received no response from Appellant, the 

PCRA court dismissed Appellant’s PCRA petition. On July 8, 2016, Appellant 

filed a timely notice of appeal. Although Appellant’s appeal raises several 

issues for our review,4 we do not reach those issues because Appellant’s 

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3 The trial court’s statement of Appellant’s age at the time of his conviction 

in 1998 was a factual error. There is no dispute between the parties that 

Appellant was born in 1978 and was 18 years old when he committed the 

murder in 1996 — not when he was convicted and sentenced in 1998. 

Although we ultimately hold that the PCRA court properly dismissed 

Appellant’s PCRA petition, we note that the PCRA court did so on the 

incorrect basis that Appellant was 18 years old “when he was convicted 

and sentenced to life imprisonment,” Notice of Intent to Dismiss, 

5/31/2016, at 1, instead of “at the time of [his] crimes,” Miller, 132 

S.Ct. at 2460. However, “[w]e can affirm the court's decision if there is any 

basis to support it, even if we rely on different grounds to affirm.” In re 

Payne, 129 A.3d 546, 571 (Pa. Super. 2015), appeal denied, 145 A.3d 

167 (Pa. 2016); accord Commonwealth v. Pursell, 749 A.2d 911, 917 

(Pa. 2000).

4

(1) Was the Court in Error when it dismissed Appellant's issues 

without investigation?

(2) Did the Court deny Appellant Equal Protection as 

guaranteed by both Constitutions of Pennsylvania, and the 

United States of America and the many decisions of the United 

States Supreme Court?

(Footnote Continued Next Page)
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PCRA petition was filed beyond the time limits set forth in the PCRA, and, 

therefore, the PCRA court lacked jurisdiction to consider the petition. 

The time limits in the PCRA are jurisdictional. Commonwealth v. 

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A PCRA petition, 

including a second or subsequent petition, must be filed within one year of 

the date the underlying judgment of sentence becomes final. See 42 

Pa.C.S. § 9545(b)(1). A judgment is deemed 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 review.” Id. § 9545(b)(3). Here, Appellant’s judgment of 

sentence became final on February 27, 1998, upon the expiration of the time 

(Footnote Continued) _______________________

(3) Was the Commonwealth premature when dismissing 

Appellant's Constitutional Protected Petition without a record of 

the argument from a[n] Evidentiary Hearing?

(4) Is Cruel and Unusual Punishment in violation of the 

Constitutions of Pennsylvania, and the United States of America?

(5) Does [Roper v. Simons, 543 U.S. 551 (2005), holding 

that the imposition of capital punishment for crimes committed 

when the perpetrator was under the age of 18 is 

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

holding that juvenile offenders cannot be sentenced to life 

imprisonment without parole for non-homicide offenses] and 

Miller coupled with Dennis v. Secretary, PA Department of 

Corrections, [834 F.3d 263] (3d Cir. 2016) [which addresses 

the prosecution’s duty of disclosure under Brady v. Maryland, 

373 U.S. 83 (1963)] Grant Appellant entitlement under the 

Eighth Amendment to the Unites States Constitution[?] 

Appellant’s Brief at 2.
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for filing a direct appeal to this Court. See id. § 9545(b)(3); Pa.R.A.P. 

903(a) (“the notice of appeal required by Rule 902 . . . shall be filed within 

30 days after the entry of the order from which the appeal is taken”). Thus, 

Appellant had one year from that date, or until March 1, 1999,5to file a 

timely PCRA petition. See 42 Pa.C.S. § 9545(b). Appellant did not file the 

instant petition until March 21, 2016, more than 17 years after his judgment 

of sentence became final. Accordingly, the PCRA court had no jurisdiction to 

entertain Appellant’s petition unless he pleaded and proved one of the three 

statutory exceptions to the PCRA’s time bar. See id. § 9545(b)(1).6 

____________________________________________

5

February 27, 1999, was a Saturday; Monday, March 1, 1999, was the first 

business day thereafter.

6 Those exceptions are:

(i) the failure to raise the claim previously was the result 

of interference of 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.

A petition invoking one of the exceptions must be filed within sixty days of 

the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
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Appellant attempts to circumvent the time bar by asserting the “newly 

discovered evidence” exception under subsection 9545(b)(1)(ii) and the 

“new constitutional right” exception under subsection 9545(b)(1)(iii). PCRA 

Pet., 3/21/16, at 1-2. Appellant does not explain how he qualifies for the 

exception under subsection 9545(b)(1)(ii), and any claim under that 

exception therefore was properly dismissed. Commonwealth v. Murray,

753 A.2d 201 (Pa. 2000) (holding court properly dismissed untimely PCRA 

petition, where defendant did not plead and prove applicability of time-bar 

exceptions); Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 

2007) (an untimely PCRA petition is properly dismissed absent proof of 

applicability of time-bar exceptions). With respect to subsection 

9545(b)(1)(iii), Appellant invokes the United States Supreme Court’s holding 

in Miller with respect to those under age 18 and argues:

[M]andatory life without parole for individual[s] under the age of 

twenty-one violates state and federal equal protection clauses, 

as well as Article 7 of the Universal Declaration of Human Rights. 

. . . [Appellant] also points out that it was not until the United 

States Supreme Court in [its] most recent case Montgomery v. 

Louisiana, 577 U.S. ___[, 136 S.Ct. 718] (2016), where the 

Court held that ‘Miller’s prohibition on mandatory life without 

parole for juvenile offenders announced a new substantive rule, 

that under the Constitution, is retroactive in cases on state 

collateral review’, that [Appellant] was able to properly invoke 

this Court’s jurisdiction to review these claims.

PCRA Pet., dated 3/21/16, at 2-3. In his brief to this Court, Appellant 

justifies his assertion of rights under Miller for those under the age of 21 

(rather than those under 18) on the ground that Pennsylvania law treats 21 
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as the age of adulthood for some purposes and that those under 21 

sometimes have the same lack of maturity as those under 18. See 

Appellant’s Brief at 6-8.

The Supreme Court’s decision in Miller specifically applies only to 

defendants who were under the age of 18 when they committed murder. 

132 S.Ct. at 2460. It therefore did not create a “new constitutional right” 

that may be invoked by those who were 18 or older at the time of their 

crimes. Accordingly, Miller may not be used by such persons to extend the 

PCRA’s time limits under Section 9545(b)(1)(iii) of the statute — even 

where, as here, a defendant claims that his lack of maturity or intellectual 

development should cause him to be treated as the equivalent of a juvenile. 

As we explained in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. 

Super. 2016) (emphasis in original) (citation omitted):

Appellant argues that he . . . may invoke Miller because he was 

a “technical juvenile,” and he relies on neuroscientific theories 

regarding immature brain development to support his claim that 

he is eligible for relief. But, rather than presenting an argument 

that is within the scope of the Miller decision, this argument by 

Appellant seeks an extension of Miller to persons convicted of 

murder who were older at the time of their crimes than the class 

of defendants subject to the Miller holding. 

We rejected reliance on this same argument for purposes of 

Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d 

759 (Pa.Super. 2013). The defendants in Cintora were 19 and 

21 years old at the times of their crimes, but they argued that 

Miller should apply to them and others “whose brains were not 

fully developed at the time of their crimes.” Id. at 764. We 

stated that “[a] contention that a newly-recognized 

constitutional right should be extended to others does not 

render [a] petition [seeking such an expansion of the right] 
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timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in 

original).

. . . Cintora remains controlling on this issue, and Appellant's 

assertion of the time-bar exception at Section 9545(B)(1)(iii) 

must be rejected.

Appellant’s reliance on Pennsylvania state laws setting 21 as the age of 

adulthood for some purposes merely presents another argument for a 

possible extension of Miller to a broader class of persons than those covered 

by the Supreme Court’s decision. But the fact remains that the existing 

constitutional right under Miller does not apply to Appellant and, 

accordingly, it may not be used as a basis for extending the PCRA’s time bar 

under Section 9545(b)(1)(iii).

Thus, under Furgess and Cintora, Miller is inapplicable to Appellant 

and provides no exception to the PCRA’s time bar. The trial court therefore 

was without jurisdiction, and Appellant’s PCRA petition was properly 

dismissed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2017