J-S80033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DWAYNE BROWN, 

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 923 EDA 2017

Appeal from the PCRA Order February 17, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0307362-1996

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2018

Dwayne Brown (“Brown”) appeals, pro se, from the Order dismissing 

his Petition for Writ of Habeas Corpus.

1

 We affirm.

A jury found Brown guilty of murder of the first degree, possession of 

an instrument of crime, criminal conspiracy, and attempted murder. The 

trial court imposed an aggregate sentence of life in prison without parole. 

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1

In his Petition for Writ of Habeas Corpus, Brown only challenges the 

legality of his sentence. Because Brown filed his Petition after his judgment 

of sentence became final, and the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546, provides a remedy for his claim, the Petition was 

properly treated as filed pursuant to the PCRA. See 42 Pa.C.S.A. § 9542 

(providing that “[t]he action established in this subchapter shall be the sole 

means of obtaining collateral relief and encompasses all other common law 

and statutory remedies for the same purpose that exist when this 

subchapter takes effect, including habeas corpus and coram nobis.”); see 

also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) 

(stating that “any petition filed after the judgment of sentence becomes final 

will be treated as a PCRA petition.”) (citation omitted).
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This Court affirmed the judgment of sentence, and the Supreme Court of 

Pennsylvania denied allowance of appeal. See Commonwealth v. Brown, 

739 A.2d 582 (Pa. Super. 1999) (unpublished memorandum), appeal 

denied, 749 A.2d 465 (Pa. 2000). On June 12, 2000, the United States 

Supreme Court denied Brown’s Petition for writ of certiorari. See Brown v. 

Pennsylvania, 530 U.S. 1234 (2000).

Brown filed four previous PCRA Petitions, all of which the PCRA court 

either denied or dismissed. On March 24, 2016, Brown filed the instant 

Petition.2 In January 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice 

of its intent to dismiss the Petition, and Brown filed a Response. The PCRA 

court then dismissed Brown’s fifth Petition. Brown filed a timely Notice of 

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.

On appeal, Brown raises the following question for our review: 

“Whether [Brown] is entitled to post conviction relief based on newly 

discovered mitigating evidence regarding brain science and social science 

study?” Brief for Appellant at 3 (some capitalization omitted).

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2 We note that Brown’s appeal from the dismissal of his fourth PCRA Petition 

was pending at the time he filed the instant Petition. See Commonwealth 

v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that a PCRA court cannot 

entertain a new PCRA petition when a prior petition is under appellate 

review). However, this Court’s decision affirming the dismissal of Brown’s 

fourth PCRA Petition was decided on July 11, 2016, and Brown did not seek 

further review. See Commonwealth v. Brown, 143 A.3d 418 (Pa. Super. 

2016). Because Brown’s fifth Petition was not reviewed or decided until 

Brown’s appeal as to his fourth Petition had been completed, we will 

examine the instant appeal.
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“On appeal from the [dismissal] of PCRA relief, our standard of review 

calls for us to determine whether the ruling of the PCRA court is supported 

by the record and free of legal error.” Commonwealth v. Nero, 58 A.3d 

802, 805 (Pa. Super. 2012).

Initially, under the PCRA, any PCRA petition “including a second or 

subsequent petition, shall be filled within one year of the date the judgment 

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment 

of sentence becomes final “at the conclusion of direct review, including 

discretionary review in the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s 

timeliness requirements are jurisdictional in nature and a court may not 

address the merits of the issues raised if the PCRA petition was not timely 

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). 

Here, Brown’s Petition is facially untimely under the PCRA. See 42 

Pa.C.S.A. § 9545(b). However, Pennsylvania courts may consider an 

untimely petition if the appellant can explicitly plead and prove one of three 

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition 

invoking one of these exceptions “shall be filed within 60 days of the date 

the claim could have been presented.” Id. § 9545(b). 

Here, Brown invokes the newly-discovered facts exception at section 

9545(b)(1)(ii), based upon the decisions in Montgomery v. Louisiana, 136 
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S. Ct. 718 (2016), and Miller v. Alabama, 567 U.S. 460 (2012).3 In 

Miller, the United States Supreme Court held that sentencing schemes that 

mandate life in prison without parole for defendants who committed their 

crimes while under the age of eighteen violate the Eighth Amendment’s 

prohibition on “cruel and unusual punishments.” Miller, 567 U.S. 465. The 

Court reasoned that in light of a juvenile’s diminished culpability and 

heightened capacity for change, mandatory juvenile sentencing schemes 

pose too great a risk of disproportionate punishment, in contravention of the 

Eighth Amendment. Id. at 479. In Montgomery the United State Supreme 

Court held that Miller applies retroactively. See Montgomery, 136 S. Ct. 

at 736. 

Brown’s reliance upon Miller and Montgomery as newly-discovered 

facts is without merit, as judicial decisions do not constitute newlydiscovered facts for the purposes of Section 9545(b)(1)(ii). See 

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011).4 Even if Brown 

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3 We note that Brown filed the instant Petition within 60 days of the 

Montgomery decision.

4 To the extent Brown invokes the newly-discovered facts exception based 

upon studies and data that revealed that the brain does not fully develop 

until the age of twenty-five years old, we conclude that Brown has not 

exercised due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (stating that “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[.]”). Here, 

Brown relies upon information cited in Miller, which was decided in June 

2012, nearly four years prior to the filing of the instant Petition.
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had invoked the newly-recognized constitutional right exception, he would 

not be entitled to relief under Miller and Montgomery. Indeed, Brown 

concedes that he was twenty-two years old when he committed the murder. 

See Brief for Appellant at 12; see also Commonwealth v. Furgess, 149 

A.3d 90, 94 (Pa. Super. 2016) (noting that “petitioners who were older than 

18 at the time they committed murder are not within the ambit of the Miller

decision and therefore may not rely on that decision to bring themselves 

within the time-bar exception in Section 9545(b)(1)(iii).”); id. (rejecting 

appellant’s argument to extend the Miller holding based upon 

neuroscientific theories regarding brain development of persons over the age 

of 18).

Based upon the foregoing, the PCRA court properly dismissed Brown’s 

PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/26/18