J-S40015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE YACOB 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3531 EDA 2016

Appeal from the PCRA Order September 13, 2016

In the Court of Common Pleas of Bucks County 

Criminal Division at No(s): CP-09-CR-0002832-1981

BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2017

Appellant, George Yacob, appeals pro se from the September 13, 

2016, order entered in the Court of Common Pleas of Bucks County 

dismissing his serial petition filed under the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed. 

We affirm. 

The relevant facts and procedural history underlying this appeal have 

been aptly set forth by the PCRA court as follows:

On July 1, 1981, James Redman was robbed, assaulted, 

and killed in Bensalem Township, Bucks County. On July 10, 

1981, Bensalem Township Police arrested Appellant and codefendant Dennis Flanagan for the murder. In support of the 

arrest, police relied on an affidavit of probable cause detailing 

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*

Former Justice specially assigned to the Superior Court.
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police interviews with individuals [to] whom both Appellant and 

Flanagan admitted to assaulting, robbing, and killing a man while 

describing circumstances closely resembling those surrounding 

Redman’s death. According to the interviews, Appellant and 

Flanagan beat and stabbed Redman to death, buried his body, 

and stole his car and belongings after Redman made a romantic 

advance at Appellant. At the time of the killing, Appellant was 

over the age of 18 years old.

On November 30, 1981, following an extensive guilty plea 

colloquy, Appellant knowingly and voluntarily pled guilty to 

murder in the first degree, robbery, and criminal conspiracy. On 

that same date, [the trial court] imposed a life sentence for the 

murder charge and a 10-to-20 year concurrent sentence for the 

additional charges. Following sentencing, Appellant did not file a 

motion to withdraw his guilty plea or appeal the imposition of 

sentence. [Thus,] Appellant’s judgment of sentence became 

final [thirty days later] on December 30, 1981. See 42 Pa.C.S.A. 

§ 9545(b)(3).

Subsequently, Appellant filed numerous post-conviction 

petitions. On January 19, 1983, [Appellant] filed his first 

petition under the [predecessor to the PCRA,] the Post 

Conviction Hearing Act (“PCHA”). Therein, he sought the 

withdrawal of his guilty plea and cited ineffective assistance of 

counsel. Counsel was appointed, and an evidentiary hearing was 

held on May 3, 1983. [The PCHA court] denied relief in an order 

dated May 25, 1983, and [this Court] affirmed that decision. 

Thereafter, Appellant filed a second PCHA petition on 

October 28, 1985, which essentially alleged the same issues. 

[The PCHA court] denied the petition without a hearing in an 

order dated April 26, 1986, and Appellant did not file an appeal.

Later, Appellant filed a third PCHA petition on August 13, 

1986. At the hearing for the third petition, the [PCHA court] 

concluded that the basis for [the] petition was the same as the 

first and second petitions. As such, Appellant was allowed to 

appeal nunc pro tunc the order of April 26, 1986. On appeal, 

[this Court] affirmed the order. 

In 1988, the PCHA was repealed, in part, and renamed the 

[PCRA]. Afterward, Appellant filed a fourth post-conviction 

petition under the PCRA, which again alleged ineffective 

assistance of counsel. On July 24, 1990, [the PCRA court] 

denied the petition without a hearing. In his fifth petition, 

Appellant argued that his appeal from the July 24, 1990, order 
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was somehow lost or misplaced. [The PCRA court] filed an 

opinion deeming the petition meritless on July 20, 1991. On 

October 3, 1991, [this Court] quashed Appellant’s appeal.

Most recently, Appellant filed his sixth PCRA petition on 

March 21, 2016. Appellant’s petition argued that his mandatory 

life sentence without parole was unconstitutional in light of 

decisions by the United States Supreme Court in Montgomery 

v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama, 

132 S.Ct. 2455 (2012). In his petition, Appellant acknowledged 

that he was over the age of 18 years old at the time of James 

Redman’s murder. On July 7, 2016, [the PCRA court] issued 

notice of intent to dismiss Appellant’s petition pursuant to 

[Pa.R.Crim.P.] 907. The notice informed Appellant that [the 

PCRA court] intended to dismiss his petition as untimely because 

the Montgomery and Miller decisions were inapplicable to 

Appellant’s case as [he was] an offender over the age of 18 

years old.

On September 13, 2016, [the PCRA court] dismissed 

Appellant’s petition as untimely[.] Appellant then filed a timely 

notice of appeal to [this Court] on October 7, 2016. [All 

Pa.R.A.P. 1925 requirements have been met.]

PCRA Court Opinion, filed 12/12/16, at 1-3 (citations to record and footnote 

omitted). 

Preliminarily, we must determine whether Appellant’s instant PCRA 

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50 

(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is 

clear; we are limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and 

quotation marks omitted). 

The most recent amendments to the PCRA, effective January 19, 1996, 

provide that a PCRA petition, including a second or subsequent petition, shall 
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be filed within one year of the date the underlying judgment becomes final. 

42 Pa.C.S.A. § 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 

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:

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

interference by government officials with the 

presentation of the claim in violation of the Constitution 

or the law of this Commonwealth or the Constitution or 

law 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 Pennsylvania after 

the time period provided in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

“We emphasize that it is the petitioner who bears the burden to allege 

and prove that one of the timeliness exceptions applies.” Commonwealth 

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted). 

Moreover, “the PCRA limits the reach of the exceptions by providing that a 

petition invoking any of the exceptions must be filed within 60 days of the 
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date the claim first could have been presented.” Commonwealth v. 

Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 

Pa.C.S.A. § 9545(b)(2). 

In the case before us, as the PCRA court aptly found, Appellant was 

sentenced on November 30, 1981, and he filed neither post-sentence 

motions nor a direct appeal. Accordingly, his judgment of sentence became 

final thirty days thereafter, on December 30, 1981, when the time period for 

filing a direct appeal to this Court expired. See Pa.R.A.P. 903(a) (providing 

an appeal to this Court shall be filed within thirty days after entry of the 

order from which the appeal is taken); 42 Pa.C.S.A. § 9545(b)(3) (setting 

forth when judgment of sentence becomes final). Thus, Appellant had until 

December 30, 1982, to file a timely PCRA petition; however, Appellant filed 

the instant petition on March 21, 2016, and therefore, it is patently untimely 

under the PCRA.1 See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. 

Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000). 

Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A. 

§ 9545(b)(1)(iii) relating to a new constitutional right that applies 

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1 Where a petitioner’s judgment of sentence became final on or before the 

effective date of the amendment, a special grace proviso allowed first PCRA

petitions to be filed by January 16, 1997. See Commonwealth v. Alcorn,

703 A.2d 1054, 1056–57 (Pa.Super. 1997). However, this is not Appellant’s 

first PCRA petition, and the instant petition was not filed by January 16, 

1997. Accordingly, Appellant is not entitled to the proviso’s benefit. 
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retroactively. Specifically, Appellant avers that his sentence is illegal under 

Montgomery/Miller. 

Assuming, arguendo, Appellant met the initial sixty day threshold, we 

conclude the dictates of Montgomery/Miller are inapplicable to Appellant. 

In Montgomery, the High Court held that its ruling in Miller is to be given 

retroactive effect on collateral review. In Miller, the High Court held that 

sentencing a juvenile convicted of a homicide offense to mandatory life 

imprisonment without parole violates the Eighth Amendment’s prohibition to 

cruel and unusual punishment. Accordingly, such sentences cannot be 

handed down unless a judge or jury first considers mitigating circumstances. 

The Miller decision applies to only those defendants who were “under 

the age of 18 at the time of their crimes.” Miller, 132 S.Ct. at 2460. Here, 

Appellant admits that he was nineteen years old when he committed the 

murder, and the PCRA court so determined, as well. See Appellant’s Brief 

at 9; PCRA Court Opinion, filed 12/12/16, at 1 n.1. In this regard, the PCRA 

court noted that Appellant’s birth date is March 15, 1962, and he committed 

the murder on July 1, 1981. Id. Therefore, we agree with the PCRA court 

that the holdings in Montgomery/Miller are not applicable to Appellant. 

Appellant argues, nevertheless, that he may invoke 

Montgomery/Miller because he was a “technical juvenile,” and he relies on 

theories regarding immature brain development to support his claim that he 

is eligible for relief. Thus, Appellant seeks an extension of 
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Montgomery/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. However, this Court has previously rejected such an argument. 

See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016) (holding 

the nineteen-year-old appellant was not entitled to relief under 

Miller/Montgomery on collateral review; rejecting argument that he 

should be considered a “technical juvenile”). 

In light of the aforementioned, we agree with the PCRA court that 

Appellant’s instant PCRA petition is untimely, and he has failed to invoke 

successfully any of the timeliness exceptions. Accordingly, we affirm.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2017