J-A09044-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL RUSSELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2978 EDA 2018

Appeal from the Order Entered September 18, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0611781-1991

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED MAY 17, 2019

Paul Russell (Russell) appeals pro se from an order entered in the Court 

of Common Pleas of Philadelphia County (PCRA court) dismissing as untimely

his third petition for relief under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546. We affirm.

Following a jury trial, Russell was convicted in 1992 of first degree 

murder and possessing instruments of crime and sentenced to the mandatory 

term of life imprisonment without the possibility of parole. We set forth the 

facts underlying those convictions in a prior memorandum as follows:

On March 7, 1991, at approximately 10:30 o'clock P.M., Gregory 

Schofield, the Commonwealth's key eyewitness, was talking with 

Sherman Harris at the corner of Twenty-fifth and Harlan Streets 

here in North Philadelphia. After Schofield lent Harris three 

dollars, Harris proceeded to walk towards the intersection of 

Twenty-fourth and Harlan Streets. The defendant and an 

associate known as Nate approached Harris at a location in close 

proximity to 2452 Harlan Street. Nate began to tussle with Harris 
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and knocked him to the ground. Harris fell near the steps of 2452 

Harlan Street. Schofield then grabbed Nate and pulled him off 

Harris. At this point, the defendant, who was standing near the 

street during this struggle, told Harris, "I'm tired of you taking my 

stuff” and proceeded to fire five bullets at Harris with a .22 caliber 

revolver. The defendant stood above Harris from about five feet 

away as he fired the five shots, thereby emptying his revolver. 

However, instead of ceasing his gunfire, the defendant reloaded 

his gun and fired six more shots into Harris. Eight of these eleven 

gunshots entered the body of Harris and resulted in his death.

Commonwealth v. Russell, 3073 EDA 1999, unpublished memorandum, at

1-2 (Pa. Super. 2000).

We affirmed Russell’s judgment of sentence by memorandum filed 

October 28, 1996. Commonwealth v. Russell, 2647 Philadelphia 1995, 

unpublished memorandum (Pa. Super. 1996). Russell unsuccessfully sought 

timely PCRA relief and we affirmed on appeal. 3073 EDA 1999.

On April 13, 2015, Russell filed his second PCRA petition and the PCRA 

court denied relief finding that Russell failed to plead and prove any exception 

to the one-year time bar. We affirmed on appeal, Commonwealth v. 

Russell, 400 EDA 2016, 2016 WL 5846824 (Pa. Super. 2016). Russell did 

not seek further review from our Supreme Court.

The present proceeding commenced on March 21, 2016. The PCRA 

court took no action until July 30, 2018, when it issued a notice of intent to 

dismiss. Russell did not reply and the PCRA court entered an order denying 
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the petition on September 18, 2018. Russel timely appealed and has briefed 

four issues, all of which are claims of ineffective assistance of trial counsel.

1

Before addressing Russell’s claims, we must first determine whether this 

petition was timely filed. The PCRA statute requires that any petition “shall 

be filed within one year of the date the judgment becomes final,” 42 Pa.C.S. 

§ 9545(b)(1). There are three exceptions, which apply if the petition alleges 

and proves that:

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

interference by government officials with the presentation of the 

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). Additionally, under § (b)(2), Jordan’s claim had to 

be filed within sixty days of the date it could have been presented.2

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1 “When reviewing the denial of a PCRA petition, our standard of review is 

limited to examining whether the PCRA court’s determination is supported by 

evidence of record and whether it is free of legal error.” Commonwealth v.

Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018). Timeliness presents a 

question of law, which we review de novo and our scope of review is plenary. 

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017).

2 The subsection was amended in October 2018 and now gives a petitioner 

one year to present claims arising on or after December 24, 2017.
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The time-bar is jurisdictional and we must determine whether the PCRA 

petition was timely filed. Commonwealth v. Graves, 197 A.3d 1182, 1185 

(Pa. Super. 2018). Since Russell’s judgment of sentence became final long 

ago, the underlying PCRA petition was timely only if one of the exceptions 

applied.

The petition at issue, captioned “Petition for Post Conviction Relief to 

Exhaust Remedies and Preserve Issues Reviewable Under Montgomery v. 

Louisiana,” was filed March 21, 2016. Petition, 3/21/16. Montgomery, 

which was issued on January 25, 2016, held that states must give retroactive 

effect to new substantive rules of constitutional law. One such substantive 

rule is Miller v. Alabama, 567 U.S. 460 (2012), which held that it is 

unconstitutional to impose a mandatory sentence of life imprisonment without 

the possibility of parole for crimes committed while the defendant was a 

juvenile. Russell’s March 21, 2016 filing, therefore, facially satisfied the 

(b)(1)(iii) exception. See Commonwealth v. Secreti,134 A.3d 77, 82–83 

(Pa. Super. 2016) (“The date of the Montgomery decision (January 25, 2016, 

as revised on January 27, 2016) will control for purposes of the 60–day rule 

in Section 9545(b)(2).”).

However, the PCRA court correctly determined that 

Montgomery/Miller is of no moment since Russell was over eighteen at the 

time of his crimes. “[P]etitioners who were older than 18 at the time they 

committed murder are not within the ambit of the Miller decision and 
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therefore may not rely on [Montgomery] to bring themselves within the 

time-bar exception in Section 9545(b)(1)(iii).” Commonwealth v. Furgess, 

149 A.3d 90, 94 (Pa. Super. 2016). Furthermore, Russell did not even attempt 

to explain how his invocation of (b)(1)(iii) via Montgomery could revive 

claims of trial counsel ineffectiveness as those claims have nothing to do with 

Miller’s holding. Even if Miller applied to Russell, the only thing he would be 

entitled to is resentencing. See Commonwealth v. Porter, 35 A.3d 4, 13 

(Pa. 2012) (“These provisions are claim-specific, as they would have to be, 

given the sixty-day filing restriction[.]”). Therefore, the PCRA court correctly 

determined that it lacked jurisdiction to address any and all of Russell’s claims.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/19