J

- S15011

- 18

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILLIAM J. WELCH Appellant No. 2883 EDA 2017

Appeal from the PCRA Order entered August 10 , 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP

- 51

- CR

- 1106141

- 1987

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY STABILE, J.: FILED MAY 30 , 2018 Appellant, William J. Welch, appeals from the August 10 , 2017 order of the Court of Common Pleas of Philadelphia County, dismissing his first 1 amended petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 46. Upon review, we affirm. The factual and procedural background are not in dispute. Briefly, on October 4, 1987, Appellant was arrested and charged with murder and related offenses. On February 10, 1988, a jury found Appellant guilty of first

- degree

_________________ __________ ______ ____ _______ 1 I t is unclear from the record whether the instant PCRA petition, filed in 2012, w as A ppellant’s first one. T he PCRA court noted , “ [d] ue to the age of this case, this [c]ourt cannot determine whether [Appellant] filed a previous PCRA petition. This [c]ourt, the refore, treats the instant PCRA petition as his first.” PCRA Court Opinion, 8/10/17 , at 1 n.2. The Commonwealth does not dispute the PCRA court’s characterization of the instant petition

. Accordingly, we will to treat the instant petition as Appellant’s first PCRA petition.J

- S15011

- 18

- 2

-

murder, robbery, and theft by unlawful taking. On September 26, 1988, the trial court imposed a sentence of life imprisonment without parole for the murder conviction, and a concurrent term of five to twenty years for robbery. At the time of the murder, Appellant was 21 years old. Appellant filed a direct appeal with this Court. On April 17, 1989, we affirmed his judgment of sentence. On Augus t 9, 2012, Appellant filed a pro

se P CRA petition. On July 3, 2017, through appointed counsel, Appellant filed an amended petition. 2 On July 6, 2017, upon review, the PCRA court filed a

n otice of i ntent to d ismiss under Pa.R.Crim.P. 907. On August 10, 2 017, the PCRA court dismissed the instant petition. This appeal followed. Appellant raises only one issue for our consideration. Namely, Appellant asks us to extend the holding of Miller v. Alabama , 132 S.Ct. 2455 (2012) , 3 to those who were less than 2 5 years old at the time of the underlying crime. We decline to do so.

_________________ __________ ______ ____ _______ 2 Neither the parties nor the PCRA court explains the approximately five

- year delay in addressing the instant petition.

3 In Miller , the U.S. Supreme 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.” Miller , 132 S.Ct. at 2460 (emphasis added). In Montgomery v. Louisiana , 136 S.Ct. 718 (2016), the Unites States Supreme Court held that Miller wa s a new substantive rule that, under the United States Constitution, must be retroactive in cases on state collateral review. Montgomery , 136 S.Ct. at 736.J

- S15011

- 18

- 3

-

W e have addressed the very same issue on numerous occasions. We have repeatedly held that Miller does not apply to defendants who were eighteen or older when they committed murder. See , e.g. , Commonwealth v. Furgess , 149 A.3d 90, 94 (Pa. Super. 2016). As noted above, Appellant was 21 years old at the time of the underlying crimes. Accordingly, Appellant has no relief under Miller

. Appellant also argues that he is due relief because equal protection requires that adults are entitled t o the same protection as juveniles. We disagree. Appellant is not similarly situated to the juvenile offenders at issue
in Miller

. Indeed, the crux of Miller ’s holding is that children and adults are “constitutionally different . . . for purposes of sentencing.” Miller , 132 S.Ct.
at 2464. In light of his age at the time he committed the underlying crimes, Appellant is not similarly situated to the juvenile offenders at issue in Miller

. The claim, th erefore, is meritless. See City of Cleburne v. Cleburne Living
Ctr ., 473 U.S. 432, 439 (1985) (explaining that the Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.”). Appellant finally argues that despite the fact he was an adult at the time of the crimes, Miller should be applied to him be cause his brain, as is the case in juveniles, was not fully developed. We rejected a similar contention in
Commonwealth v. Cintora , 69 A.3d 759 (Pa. Super. 2013). In Cintora ,J

- S15011

- 18

- 4

-

two appellants, who were nineteen and twenty

- one years of age at the time
of th eir underlying crimes, and were 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 s entences, 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 conclu de 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

- recog nized 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 claim that Miller applie s to the case sub judice based on his mental development is without merit. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/30/18