J-S19020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RUSSELL L. VANCE

Appellant No. 2086 EDA 2014

Appeal from the PCRA Order June 24, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0216811-1985

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

MEMORANDUM BY JENKINS, J: FILED APRIL 21, 2015

Russell L. Vance (“Appellant”) appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. After careful review, we affirm.

We summarize the relevant factual and procedural history of this 

matter as follows. On February 3, 1986, Appellant entered an open guilty 

plea to murder, generally,1and possessing instruments of crime2after 

shooting his landlord nine times in an apparent rental payment dispute. 

Following a degree-of-guilt hearing, Appellant was convicted of first-degree 

murder and sentenced to a mandatory sentence of life imprisonment without 

____________________________________________

1 18 Pa.C.S. § 2502.

2 18 Pa.C.S. § 907.
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the possibility of parole. This Court affirmed Appellant’s judgment of 

sentence on August 1, 1988, and our Supreme Court denied allowance of 

appeal on March 15, 1989. Thereafter, Appellant filed seven (7) PCRA 

petitions, none of which afforded him relief.

Appellant filed the instant PCRA petition, his eighth, on August 1, 

2012. The petition alleged that Appellant was entitled to relief based on the 

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

3

 The 

PCRA court issued a Rule 907 notice of intent to dismiss the petition without 

a hearing on March 26, 2014, to which Appellant filed a response on April 1, 

2014. On June 24, 2014, the PCRA court dismissed the petition as untimely. 

Appellant timely appealed on July 7, 2014. The PCRA court filed its opinion 

pursuant to Pa.R.A.P. 1925(a) on September 2, 2014.4

Appellant raises the following issue for our review:

A – WILL THE COMMONWEALTH OF PENNSYLVANIA BE IN 

VIOLATION OF BOTH: – ITS OWN CONSTITUTIONALGUARANTEES OF: *“EQUAL-PROTECTION AND DUE-PROCESS OF 

THE LAW,” AND ALSO THE U.S. CONSTITUTION’S: “1ST;-5TH; 

8TH; AND 14TH AMENDMENTS,” BY, *“RESENTENCING, 

JUVENILE-LIFERS WHO WERE ON, *“COLLATERAL-REVIEW,” TO 

A, *“MINIMUM, NUMBER OF YEARS, OF A LIFE-SENTENCE,” 

WITHOUT ALSO, INCLUDING, AN *“ADULT-LIFER,” IN THIS, 

“SENTENCING-SCHEME,” WHO WAS FOUND BY THE TRIAL-

____________________________________________

3 Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

4 The PCRA court did not order Appellant to file a statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did 

not file one.
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COURT TO BE: *“GUILTY, BUT MENTALLY-ILL,” AND IS ALSO, 

ON, *“COLLATERAL-REVIEW?” 

Appellant’s Brief, p. 6 (verbatim).

In reviewing an order denying PCRA relief, our well-settled standard of 

review is “to determine whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

“It is undisputed that a PCRA petition must be filed within one year of 

the date that the judgment of sentence becomes final.” Commonwealth v. 

Hernandez, 79 A.3d 649, 651 (Pa.Super.2013) (citing 42 Pa.C.S. § 

9545(b)(1)). “This time requirement is mandatory and jurisdictional in 

nature, and the court may not ignore it in order to reach the merits of a 

petition.” Id. (citing Commonwealth v. Murray, 753 A.2d 201, 203 

(Pa.2000)). A judgment of sentence “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. § 9545(b)(3). However, a facially 

untimely petition may be received where one of the PCRA’s three limited 

exceptions to the time for filing the petition is met. Hernandez, 79 A.3d at 

651 (footnote omitted). These exceptions include:

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

interference by government officials with the presentation of the 
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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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly 

stated, the petitioner maintains the burden of pleading and proving that one 

of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d 

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

[a] petition invoking one of these exceptions must be filed within 

sixty days of the date the claim could first have been presented. 

42 Pa.C.S.[] § 9545(b)(2). In order to be entitled to the 

exceptions to the PCRA’s one-year filing deadline, the petitioner 

must plead and prove specific facts that demonstrate his claim 

was raised within the sixty-day time frame under section 

9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

Initially, we note that Appellant filed the instant petition during the 

pendency of his seventh PCRA petition. This Court did not affirm the 

dismissal of his seventh PCRA petition until April 4, 2013. See 

Commonwealth v. Vance, 1968 EDA 2012, April 4, 2013 (unpublished 

memorandum). Technically, therefore, the petition was a nullity. See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.2000) (“when an 

appellant’s PCRA appeal is pending before a court, a subsequent PCRA 
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petition cannot be filed until the resolution of review of the pending PCRA 

petition by the highest state court in which review is sought, or upon the 

expiration of the time for seeking such review”). Appellant should have 

awaited this Court’s determination of the appeal of his seventh PCRA petition 

on April 4, 2013, and then filed the instant petition within 60 days thereof. 

See Lark, 746 A.2d 588 (“[a] subsequent petition must also be filed within 

sixty days of the date of the order which finally resolves the previous PCRA 

petition, because this is the first date the claim could have been 

presented”); see also 42 Pa.C.S. § 9545(b)(2). However, the record 

reveals that (1) Appellant attempted to comply with 42 Pa.C.S. § 

9545(b)(2), and (2) the PCRA court did not begin its review of the instant 

petition until after this Court’s April 4, 2013 decision in the appeal of the 

previous petition.5 Thus, in lieu of quashing the matter, and in the interest 

of judicial economy, we will overlook the petition’s procedural deficiency and 

proceed to determine the appeal of the PCRA court’s dismissal of the 

petition.

Appellant’s sentence became final on May 15, 1989. Accordingly, 

Appellant had until May 15, 1990 to timely file a PCRA petition. Appellant 

filed the instant petition on August 1, 2012, over 22 years after the 

expiration of his PCRA time limitation. Accordingly, Appellant’s petition is 

____________________________________________

5 See Trial Court Opinion, p. 2 n.2; Commonwealth’s Brief, p. 5 n.1.
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facially untimely. Thus, he must plead and prove that his petition falls under 

one of the Section 9545 exceptions set forth in the PCRA. See 42 Pa.C.S. § 

9545(b)(1)(i)-(iii).

To overcome the PCRA’s time bar, Appellant argues that the Supreme 

Court of the United States’ decision in Miller v. Alabama6entitles him to a 

timeliness exception pursuant to § 9545(b)(1)(iii).7 However, Miller is 

wholly inapplicable to Appellant. Miller applies to juveniles sentenced to life 

imprisonment without the possibility of parole. Appellant was 39,8and 

therefore not a minor, when he committed his crime. Accordingly, the PCRA 

court did not err in denying his petition as untimely.

Order affirmed.

____________________________________________

6

In Miller, the Supreme Court of the United States determined that 

sentences of mandatory life imprisonment without the possibility of parole 

for juveniles convicted of homicide contravene the Constitution’s prohibition 

against cruel and unusual punishment. Miller, 132 S.Ct. at 2475. 

7 We note that Appellant filed the instant petition within 60 days of Miller. 

See 42 Pa.C.S. § 9545(b)(2).

8 Appellant’s date of birth is July 3, 1945. The murder occurred on February 

3, 1985.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015