J-S19006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THEODORE D. PRZYBYSZEWSKI JR.

Appellant No. 576 EDA 2014

Appeal from the PCRA Order dated February 4, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0300701-1985

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015

Appellant Theodore D. Przybyszewski Jr. pro se appeals from the 

February 4, 2014 order of the Court of Common Pleas of Philadelphia County 

(“PCRA court”), which dismissed as untimely Appellant’s request for 

collateral relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-46. For the reasons set forth below, we affirm. 

The PCRA court summarized the facts and procedural history of this 

case as follows:

[Appellant] was arrested and charged with murder and 

related offenses for an incident which occurred in late December 

1982. Prior to trial, a plea bargain was reached in which the 

Commonwealth stated that the death penalty would not be 

sought in exchange for a guilty plea. On September 9, 1987, 

[Appellant] pled guilty to first degree murder and possession of 

an instrument of crime in front of the Honorable George J. Ivins, 

and was sentenced to life imprisonment. [Appellant] moved to 

withdraw his guilty plea, but his motion was denied at a hearing 

on September 23, 1987. [Appellant] appealed the judgment of 

sentence, and the Superior Court dismissed the appeal on 
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February 11, 1988 for failure of court appointed counsel to file a 

brief.[1] 

 On October 19, 1988, [Appellant] filed a petition under the 

Post Conviction Hearing Act. Counsel was appointed, and based 

upon submission of a “no merit” letter pursuant to 

Turner/Finley,

[FN] [Appellant’s] petition was dismissed as 

frivolous on October 10, 1991. [Appellant] filed an appeal, and 

the Superior Court affirmed the dismissal on August 13, 

1992. Allocatur was denied on April 15, 1993 by the 

Pennsylvania Supreme Court. 

[FN.] Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988) and Commonwealth v. Finley, 550 

A.2d 214 (Pa. Super. 1988) [(en banc)].

 On February 15, 1995, [Appellant] filed a petition pursuant 

to the Post Conviction Relief Act. Counsel was appointed, and 

after review, a “no merit” letter pursuant to Turner/Finely was 

filed. [Appellant’s] petition was dismissed based on 

Turner/Finley on October 26, 1995. [Appellant] filed an appeal 

to the Superior Court, but the appeal was withdrawn and 

discontinued on March 20, 1996. 

 [Appellant] filed the instant petition on February 3, 

2010. A copious number of amended petitions and supplemental 

filings have since been submitted. After conducting an extensive 

and exhaustive review of the record and applicable case law, 

th[e] [PCRA court] finds that [Appellant’s] petition for post 

conviction collateral relief is untimely filed. Therefore, this 

[PCRA court] does not have jurisdiction to consider [Appellant]’s 

PCRA petition. 

PCRA Court Opinion, 2/4/15, at 1-2. Appellant timely appealed to this 

Court.

____________________________________________

1 Appellant’s judgment of sentence became final prior to the 1995 enactment 

of the PCRA. As a result, he had until January 16, 1997 to file a timely PCRA 

petition so long as that petition was his first one. See Commonwealth v. 

Weatherill, 24 A.3d 435, 436 (Pa. Super. 2011) (citing Commonwealth v. 

Fenati, 748 A.2d 205 (Pa. 2000)) (“[T]here is an exception to [Section] 

9545 for a first PCRA petition filed by a defendant whose judgment of 

sentence became final prior to the 1995 amendments as long as the first 

PCRA petition is filed by January 16, 1997.”), appeal denied, 63 A.3d 777 

(Pa. 2013). 
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On appeal,2 Appellant filed an inordinately lengthy multi-part brief—

containing confusing and rampantly incoherent arguments—that fails to 

comply in any meaningful way with the briefing requirements set forth in the 

procedural rules.3 Although we are unable to discern the precise nature of 

Appellant’s arguments on appeal, we construe his brief to assert the 

following assertions of error. First, Appellant appears to challenge the 

discretionary aspects of his sentence, arguing that the trial court failed to 

consider mitigating factors, including his mental illness. Second, Appellant 

raises an ineffectiveness claim against his trial, direct appeal and PCRA 

counsels. Third, Appellant appears to argue his sentence is unconstitutional 

____________________________________________

2

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination ‘is supported by the record and free of legal error.’” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting 

Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

3 Additionally, Appellant filed a 50-page reply brief that was equally 

incoherent and confusing. We also recognize the PCRA court’s observation:

[Appellant] filed over 45 Amended Petitions, Motions, and Pro Se 

Correspondences in support of his PCRA Petition, with the 

majority of filings well over 50 pages. The vast majority of 

[Appellant’s] filings do not come remotely close to supporting a 

single one of his claims. For example, [Appellant] opined on the 

current court system and its deficiencies, why [Appellant] should 

be appointed a strictly female attorney, and submitted a variety 

of “Motions” that are outside the scope of the PCRA court. These 

remaining filings can only be categorized as frivolous and 

vexatious at best, and inappropriate and malicious at worse. 

[Appellant’s] preference of flooding the court with wasteful filings 

has gone well past the point of decency and crossed the line of 

gross waste of judicial resource in both in his own case and that 

of other [p]etitioners.

PCRA Court Opinion, 2/4/14, at 11-12. 
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given his mental illness. Fourth, Appellant argues that his sentence of life 

imprisonment violates the Equal Protection Clause of the United States and 

Pennsylvania constitutions, because he was below the age of 25 when he 

committed the homicide.

Before we may address the merits of Appellant’s appeal, we must 

determine as a threshold matter 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 

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.
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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). 

Instantly, there is no dispute that Appellant’s PCRA petition was 

untimely. Appellant argues only that he overcomes the PCRA’s time-bar 

because of the United States Supreme Court’s decision in Miller v. 

Alabama, 132 S. Ct. 2455 (2012).4 Appellant argues Miller applies to the 

case sub judice, because Appellant was an adult under the age of twentyfive at the time he committed the homicide.5

 In support of his argument, 

Appellant asserts that adults under the age of twenty-five do not have fully 

developed brains. 

Appellant’s argument fails for several reasons. First, Appellant did not 

raise this argument within 60 days of the Supreme Court’s June 25, 2012 

decision in Miller. As the PCRA court noted, Appellant “did not file his 

Miller claim until January 28, 2013, which is well past the 60-day deadline.” 

PCRA Court Opinion, 2/4/14, at 9. Second, it is settled that Miller did not 

recognize a new constitutional right under Section 9545(b)(1)(iii) that 

____________________________________________

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. 

5

It is undisputed that Appellant was twenty-four years old at the time he 

committed the homicide. See PCRA Court Opinion, 2/4/14, at 10.
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applies retroactively. In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 

2013), our Supreme Court held that Miller did not apply retroactively to 

cases on collateral 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 sentences were final as of the time of 

Miller’s announcement”). As noted earlier, Appellant’s sentence became 

final in 1988, well before the Miller decision was issued. Third, we have 

rejected the argument that Miller applies to adults with underdeveloped 

brains. In Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), 

appeal denied, 81 A.3d 75 (Pa. 2013), two appellants, who were nineteen 

and twenty-one years of age at the time of their underlying crimes, and 

sentenced to life imprisonment, claimed:

[T]hat because Miller created a new Eighth Amendment right, 

that those whose brains were not fully developed at the time of 

their crimes are free from mandatory life without parole 

sentences, and because research indicates that the human mind 

does not fully develop or mature until the age of 25, it would be 

a violation of equal protection for the courts to treat them or 

anyone else with an immature brain, as adults. Thus, they 

conclude that the holding in Miller should be extended to them 

as they were under the age of 25 at the time of the murder and, 

as such, had immature brains. 

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a] 

contention that a newly-recognized constitutional right should be extended 

to others does not render their petition timely pursuant to [S]ection 

9545(b)(1)(iii).” Id. (emphasis added). Thus, as in Cintora, Appellant’s 
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claim that Miller applied to the case sub judice based on his mental 

development is without merit.6

Based on the foregoing, we conclude that the PCRA court did not err in 

concluding that Appellant’s PCRA petition was untimely.7 

Order affirmed. Application to Strike denied. 

____________________________________________

6 To the extent Appellant argues his mental illness qualifies as newlydiscovered evidence exception to the PCRA’s timeliness requirement, we 

reject this argument as baseless. As the PCRA court found, in his 1988 

petition for collateral relief, Appellant “claimed that he was mentally 

incompetent at the time of crime and at sentencing and therefore his guilty 

plea was involuntary.” PCRA Court Opinion, 2/4/14, at 5. Moreover, the 

PCRA court noted Appellant also raised the issue of his mental illness in his 

1995 petition for collateral relief. Id. Despite knowledge of his mental 

illness, Appellant, however, did not invoke the newly-discovered evidence 

exception until February 3, 2010, well past the 60-day requirement under 

Section 9545(b)(2). Given the fact that Appellant was aware of his mental 

illness in 1988, and he did not invoke the newly-discovered evidence 

exception within 60 days, his newly-discovered evidence claim fails to satisfy 

the requirements of Section 9545(b)(1)(ii). 

7 On April 17, 2015, Appellant filed a thirty-five page “Application to Strike” 

the Commonwealth’s brief, raising confusing and incoherent arguments. 

Appellant fails to make any cogent arguments for why we should strike the 

Commonwealth’s brief. In fact, our review of the Commonwealth’s brief 

does not indicate any deficiencies requiring us to strike the brief. 

Accordingly, we deny Appellant’s Application to Strike the Commonwealth’s 

brief. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015