J-S44012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYRONE JAMES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2165 EDA 2017

Appeal from the PCRA Order June 16, 2017

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

No(s): CP-51-CR-0303891-2002

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 08, 2019

Tyrone James appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful 

review, we affirm.

On March 25, 2003, James was convicted of first-degree murder and 

related offenses. On May 22, 2003, the trial court sentenced James to a 

mandatory term of life imprisonment for first-degree murder, plus a 

consecutive term of 101⁄2 to 25 years on the remaining counts. James’s postsentence motions were denied and this Court affirmed his judgment of 

sentence on September 15, 2004. See Commonwealth v. James, 863 A.2d 

1225 (Pa. Super. 2004) (Table). Our Supreme Court denied allowance of 

appeal on February 23, 2005. See Commonwealth v. James, 870 A.2d 320 

(Pa. 2005) (Table).
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James filed a timely first pro se PCRA petition on January 17, 2006. 

Counsel was appointed and filed a Turner/Finley1 “no-merit” letter. The 

PCRA court granted counsel’s request to withdraw and dismissed James’s 

petition on October 6, 2006; James’s appeal was dismissed by this Court for 

failure to file a brief. James filed the instant pro se petition, his second, on 

March 23, 2016. The PCRA court issued a notice of intent to dismiss pursuant 

to Pa.R.Crim.P. 907 on May 4, 2017. James filed a response and, on June 16, 

2017, the court formally dismissed his petition. This timely appeal follows.

We begin by noting:

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA 

court is supported by evidence of record and is free of legal error. 

In evaluating a PCRA court’s decision, our scope of review is 

limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party 

at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

A PCRA petition, including a second or subsequent petition, must be filed 

within one year of the date the underlying judgment of sentence becomes 

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz, 

830 A.2d 1273, 1275 (Pa. Super. 2003). 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 

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also 

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). 

Here, James’s judgment of sentence became final on or about May 24, 

2005, upon the expiration of the ninety-day deadline for filing a petition for 

writ of certiorari with the United State Supreme Court. See 42 Pa.C.S.A. § 

9545(b)(3); Sup.Ct.R. 13. Thus, James had one year from that date, or until 

May 24, 2006, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). 

James did not file the instant petition, his second, until March 23, 2016, nearly 

eleven years after his judgment of sentence became final. Accordingly, the 

PCRA court had no jurisdiction to entertain James’s petition unless he pleaded 

and proved one of the three statutory exceptions to the time bar.2 See 42 

Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions must be 

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2 The statutory exceptions to the time bar are as follows:

(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.A. § 9545(b)(1)(i)-(iii).
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filed within 60 days of the date the claim could have been presented. 42 

Pa.C.S.A. § 9545(b)(2).

James attempts to circumvent the time bar by asserting the “newly 

recognized constitutional right” exception under subsection 9545(b)(1)(iii). 

Specifically, James asserts that he is entitled to relief pursuant to 

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

567 U.S. 460 (2012). In Miller, the Supreme Court held that sentences of 

mandatory life imprisonment without parole for those under the age of 18 at 

the time of their crimes violate the Eighth Amendment’s prohibition on cruel 

and unusual punishment. In Montgomery, the Court held that Miller

announced a new substantive constitutional rule that applied retroactively on 

state collateral review. 

Although James concedes he was over the age of 18 at the time he 

committed his crime, he claims that Miller should apply to him on equal 

protection, Eighth Amendment and state proportionality grounds.

3

 

Specifically, James alleges that developments in psychology and brain science 

have demonstrated that science is unable to draw a bright line between 

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3 James bases his claim primarily on Article 1, § 26 and Article 1, § 13 of the 

Pennsylvania Constitution, while the new constitutional right announced in 

Miller was grounded in the Eighth Amendment to the United States 

constitution. However, equal protection under the Pennsylvania Constitution 

is coextensive with the Equal Protection Clause in the United States 

Constitution and Article 1, § 13 of the Pennsylvania Constitution contains no 

broader protection than the Eighth Amendment. See Commonwealth v. 

Albert, 758 A.2d 1149 (Pa. 2000); Commonwealth v. Lankford, 164 A.3d 

1250, 1253 (Pa. Super. 2017).
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childhood and adulthood and that, “absent chronological age, there is no 

scientific difference between an individual aged 17 and one aged 24.” Brief of 

Appellant, at 13. As such, the application of Miller to only those individuals 

under the numerical age of 18 is arbitrary and offends the Equal Protection 

Clause and Eighth Amendment with respect to an individual over the age of 

18 whose “brain has been scientifically proven to be no different than those 

afforded relief” under Miller. Brief of Appellant, at 7. 

Because it is undisputed that James committed his crime at the age of 

19, on its face, Miller is inapplicable to James’s case. Moreover, we have 

repeatedly declined to extend the protections of Miller to those who assert 

that, while they were over the age of 18 at the time they committed their 

offense, they nevertheless possessed “characteristics of youth” that rendered

them less culpable under Miller’s rationale. See Commonwealth v. Lee, 

2019 PA Super 64 (Pa. Super. 2019) (en banc) (holding numerical age sole 

factor in determining whether Miller applies and declining to extend Miller’s

categorical holding until United States Supreme Court or Pennsylvania 

Supreme Court recognize new constitutional right in non-juvenile offender); 

Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc) 

(declining to extend Miller to adults whose brains were not fully developed at 

time of offense because “a contention that a newly-recognized constitutional 
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right should be extended to others” does not satisfy new-constitutional-rule 

exception to PCRA time bar).

4

 

Because James has not established an exception to the PCRA time bar, 

the PCRA court properly dismissed his petition as untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/19

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4 While Lee and Montgomery were decided on Eighth Amendment grounds, 

James also asserts claims based on equal protection. However, as we noted 

in Montgomery, 

Neither the Supreme Court of the United States nor our Supreme 

Court has held that Miller announced a new rule under the Equal 

Protection Clause. Instead, Miller only announced a new rule with 

respect to the Eighth Amendment. Thus, contrary to [petitioner’s] 

assertion, his Equal Protection Clause argument is also an attempt 

to extend Miller's holding. 

Montgomery, 181 A.3d at 366.