J-A29038-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

FITZGERALD LAWRENCE,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 62 EDA 2017

Appeal from the PCRA Order December 20, 2016 

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0408961-1978

BEFORE: LAZARUS, PLATT,* and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 05, 2017

Fitzgerald Lawrence (Appellant) appeals from the December 20, 2016 

order dismissing his petition for relief filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

When he was 20 years old, Appellant participated in a shooting that 

resulted in the death of Lamont Faison, a rival gang member. Following a 

non-jury trial, Appellant was convicted of first-degree murder, criminal 

conspiracy, and possession of an instrument of crime. In 1979, he was 

sentenced to life imprisonment, and his sentence was affirmed by the 

Pennsylvania Supreme Court in 1982. Commonwealth v. Lawrence, 442 

A.2d 234 (Pa. 1982). Appellant did not seek certiorari in the United States 

Supreme Court.

In the years following his conviction, Appellant filed a multitude of 

petitions pursuant to the PCRA and its predecessor, but none merited relief. 
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On August 9, 2012, Appellant pro se filed the PCRA petition that is the 

subject of this appeal.1 There was no activity by the PCRA court until April 

20, 2016, when the court issued notice of its intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907.

2

 Appellant filed a response, 

but on January 26, 2017, the PCRA court dismissed the petition as untimely 

filed. Appellant pro se timely filed a notice of appeal, and both Appellant 

and the PCRA court complied with Pa.R.A.P. 1925. 

Our first task is to determine whether Appellant’s PCRA petition was 

timely filed, as the timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

of sentence is final unless the petition alleges, and the petitioner proves, 

that an exception to the time for filing the petition is met. 42 Pa.C.S. 

§ 9545. “[W]hen a PCRA petition is not filed within one year of the 

expiration of direct review, or not eligible for one of the three limited 

 

1 Appellant filed petitions on May 15, 2014, February 9, 2016, and March 22, 

2016, purporting to amend his August 9, 2012 petition. Because Appellant 

did not seek and obtain leave to amend his August 9, 2012 petition, his later 

attempts to amend the petition had no legal effect. See Commonwealth v. 

Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (explaining that amendments 

are not “self-authorizing;” Pa.R.Crim.P. 905 permits amendments only by 

direction or leave of the PCRA court). 

2 The certified record does not indicate why it took the PCRA court almost 

four years to issue a Rule 907 notice. Such a long delay raises serious

questions about whether justice is being served.
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exceptions, or entitled to one of the exceptions, but not filed within 60 days 

of the date that the claim could have been first brought, the [PCRA] court 

has no power to address the substantive merits of a petitioner’s PCRA 

claims.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

It is clear that Appellant’s petition is facially untimely: his judgment of 

sentence became final in 1982. However, Appellant alleges that his petition, 

filed within 60 days of the United States Supreme Court’s decision in Miller 

v. Alabama, 567 U.S. 460 (2012), meets the following timeliness 

exception: “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)(iii). 

In Miller, the Court 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.’” 567 U.S. at 

465 (emphasis added). In Montgomery v. Louisiana, 136 S.Ct. 718 

(2016), the Court determined that Miller announced a new substantive rule 

of law that applies retroactively. Montgomery, 136 S. Ct. at 736. 

Appellant was not under the age of 18 when he participated in the 

murder of Faison. This Court has expressly held 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 
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themselves within the time-bar exception in [subs]ection 9545(b)(1)(iii).” 

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing 

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

Because Appellant did not plead facts that would establish an 

exception to the PCRA’s timeliness requirements, the PCRA court properly 

dismissed Appellant’s petition without holding a hearing. See 

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming 

dismissal of PCRA petition without a hearing because the appellant failed to 

meet burden of establishing timeliness exception).

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2017