J-S93027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VINCENT D. SPENCER

Appellant No. 446 EDA 2016

Appeal from the PCRA Order dated January 15, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0722561-1986

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 23, 2017

Appellant, Vincent D. Spencer, appeals from the order dismissing his 

fourth Post Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant 

contends that although he was thirty-one years old when he committed 

second-degree murder (among other crimes), he is entitled to relief under 

Miller v. Alabama, 132 S. Ct. 2455 (June 25, 2012) (prohibiting juveniles 

from being sentenced to life without parole), and Montgomery v. 

Louisiana, 136 S. Ct. 718 (Jan. 25, 2016) (holding that Miller applies 

retroactively). He also contends all prior trial, direct appeal, and PCRA 

counsel were ineffective. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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We repeat the facts and procedural history that were set forth by this 

Court in resolving Appellant’s first PCRA petition, which was filed on 

February 24, 1992: 

On February 3, 1988, appellant was convicted by a jury of 

second degree murder, robbery, burglary, and possessing an 

instrument of crime. Sandra Palmer Mitchell, the victim’s 

girlfriend, was an eye witness to the crime and testified as 

follows. On June 15, 1986, the victim, Charles Miller, had two 

arguments with a man whose nickname was Jingles. The 

arguments transpired just outside Mr. Miller’s apartment. Ms. 

Mitchell did not see Jingles during the arguments but heard his 

voice. Shortly thereafter, appellant broke into Miller’s apartment, 

confronted the victim, and demanded money. Ms. Mitchell 

immediately recognized appellant’s voice as that of the individual 

who had argued with Mr. Miller earlier. Mr. Miller struggled with 

appellant and was shot to death. Ms. Mitchell was shown a 

photographic array containing appellant’s picture and 

immediately identified him as the assailant.

Following the trial, appellant was sentenced to life 

imprisonment [on February 3, 1988]. We affirmed on direct 

appeal, Commonwealth v. Spencer, 397 Pa. Super. 647, 571 

A.2d 506 (1989), and the Supreme Court denied further review. 

Commonwealth v. Spencer, 525 Pa. 645, 581 A.2d 571 

(1990).

Commonwealth v. Spencer, No. 1442 Philadelphia 1994, at 1-2 (Pa. 

Super., Mar. 10, 1995). This Court ultimately denied Appellant relief on his 

claims that, among other things, counsel was ineffective by preventing him 

from testifying at trial and failing to present the testimony of alibi witnesses. 

Id. at 2-3. 
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Appellant filed his second PCRA petition on January 8, 1997, which the 

PCRA court dismissed as untimely.2 This Court affirmed the dismissal on July 

16, 1998. Commonwealth v. Spencer, No. 2708 Philadelphia 1997 (Pa. 

Super., July 16, 1998), allocatur denied, 416 E.D. Alloc. 1998, 1999 WL 

165709 (Pa., Mar. 26, 1999).

The PCRA court docketed Appellant’s third PCRA petition on April 25, 

2007. The PCRA court, on October 16, 2008, dismissed this petition as 

untimely. Appellant did not appeal.

On August 13, 2012, Appellant filed this pro se PCRA petition, his 

fourth. On November 17, 2015, the PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to dismiss.3 Appellant did not file a response, and the 

PCRA court dismissed the petition as untimely on January 15, 2016.4 On 

February 7, 2016, Appellant filed a counseled notice of appeal, and the PCRA 

court did not issue a Pa.R.A.P. 1925(b) order. 

____________________________________________

2

“The 1995 PCRA amendments provided for a ‘transitional, statutory grace 

period’ of one year, applicable to first petitions in cases where the judgment 

of sentence became final before the January 16, 1996 effective date of the 

1995 amendments. Thus, in such an instance, a PCRA petition is timely if it 

was filed no later than January 16, 1997.” Commonwealth v. Robinson, 

837 A.2d 1157, 1158 n.3 (Pa. 2003) (citation omitted and emphasis added).

3 The record does not reveal the reason for the considerable delay in 

disposition.

4 As discussed below, Montgomery v. Louisiana was issued by the U.S. 

Supreme Court on January 25, 2016, between the PCRA court’s dismissal 

and the date Appellant filed his notice of appeal.
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Appellant raises two issues:

Whether the trial court erred in denying appellant’s PCRA 

petition where he indicated that he was entitled to relief 

pursuant to the rulings in the United States Supreme Court 

cases of Miller v. Alabama and Montgomery v. Louisiana.

Whether all counsel, trial, direct appeal and PCRA were 

ineffective and whether appellant can obtain relief from such 

ineffectiveness where although the instant Petition was filed 

outside the one year time limitation, the Holding in McQuiggin 

v. Perkins and Martinez v. Ryan would apply to his case 

where his PCRA Petition was pending when McQuiggin was 

decided and the trial court did not file a 1925(b) order.

Appellant’s Brief at 11.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition 

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

by the evidence of record and free of legal error.” Commonwealth v. 

Wilson, 824 A.2d 331, 333 (Pa. Super.) (en banc) (citation omitted), 

appeal denied, 839 A.2d 352 (Pa., Dec. 1, 2003).

On appeal, Appellant contends that although he was thirty-one when 

he committed the crimes in question, Miller, which was held by 

Montgomery to be retroactively applicable to cases on collateral review, 

should apply to his case. He attacks the mandatory nature of a life-withoutparole sentence for second-degree murder and posits that the mental age of 

the defendant should govern whether a life sentence should be imposed. His 

argument, we hold, even if preserved, lacks merit.

As our Supreme Court has explained:
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the PCRA timeliness requirements are jurisdictional in 

nature and, accordingly, a PCRA court is precluded from 

considering untimely PCRA petitions. We have also held 

that even where the PCRA court does not address the 

applicability of the PCRA timing mandate, th[e] Court will 

consider the issue sua sponte, as it is a threshold question 

implicating our subject matter jurisdiction and ability to 

grant the requested relief. 

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations 

omitted). 

A PCRA petition “must normally be filed within one year of the date the 

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.” Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). The three 

exceptions to the general one-year time limitation are:

(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). 
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Instantly, Appellant filed his petition on August 13, 2012, within sixty 

days of the Miller decision, but over three years prior to the Montgomery

decision. And the PCRA court dismissed Appellant’s petition on January 15, 

2016, just ten days before the Supreme Court decided Montgomery. Thus, 

neither Appellant nor the PCRA court could have known of, let alone 

addressed, the import of Montgomery. 

We need not quibble with whether Appellant’s argument has been 

preserved, however, because neither Miller nor Montgomery apply to 

Appellant. The only exception to the time-bar in Section 9545(b) that could 

be applicable here is Section 9545(b)(1)(iii), relating to assertion of a newlyrecognized constitutional right — namely, the right of a juvenile under Miller

not to be sentenced to life without parole. Appellant does not qualify for 

application of that right because he was not a juvenile when he committed 

the murder; rather, he was thirty-one years old. See Miller, 132 S. Ct. at 

2460 (holding only that mandatory life without parole sentences for 

individuals under eighteen at the time of their crimes are 

unconstitutional); Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. 

Super. 2016) (non-juvenile petitioners “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 themselves within the time-bar exception in Section 

9545(b)(1)(iii)”). Appellant’s exhortations that the holdings of Miller and 

Montgomery should be construed to include adult defendants who were 
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under the mental age of eighteen when they committed the offenses at issue 

lack support — nothing in those decisions provides that they may be applied 

to a person physically eighteen years or older who has a “mental age” of less 

than eighteen. 

Appellant also attempts to invoke a timeliness exception based on 

McQuiggin v. Perkins, 133 S. Ct. 1924 (May 28, 2013), and Martinez v. 

Ryan, 132 S. Ct. 1309 (Mar. 20, 2012). Initially, Appellant failed to invoke 

McQuiggin or Martinez in his petition. Indeed, Appellant filed his petition 

on August 13, 2012, well before McQuiggin was issued. Thus, Appellant 

cannot raise either for the first time on appeal. See generally Pa.R.A.P. 

302. Regardless, both McQuiggin and Martinez are inapposite. 

In McQuiggin, “the United States Supreme Court held that petitioners 

who assert a convincing actual innocence claim may thereby invoke the 

miscarriage of justice exception to overcome the federal habeas corpus

statute of limitations.” Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. 

Super. 2016) (summarizing McQuiggin, supra). This Court in Brown

explained, however, that federal “decisions pertaining to federal habeas 

corpus law[, such as McQuiggin, are] irrelevant to our construction of the 

timeliness provisions set forth in the PCRA.” Id. at 420-21 (emphasis 

added). 

In Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016), our 

Supreme Court addressed the import of Martinez. In Martinez, “the High 
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Court altered the federal law of procedural default to allow post-conviction 

petitioners to have their waived claims of trial counsel ineffectiveness 

reviewed in federal habeas corpus proceedings where post-conviction 

counsel never raised such claims.” Robinson, 139 A.3d at 183 (footnote 

omitted) (summarizing holdings of Martinez, supra, and Trevino v. 

Thaler, 133 S. Ct. 1911 (2013)). The defendant in Robinson urged the 

Court to permit him to challenge counsel’s effectiveness “for the first time in 

an otherwise untimely filed PCRA petition,” Robinson, 139 A.3d at 184, by 

creating an equitable exception to the PCRA’s timeliness requirements. The 

Supreme Court declined, reasoning, inter alia, that the defendant’s

proposed change in procedure would be in direct contravention 

of the legislatively created time-bar of the PCRA and the limited 

statutory exceptions provided therein. This Court has no 

authority to carve out equitable exceptions to statutory 

provisions and the federal jurisprudence cited by [the defendant] 

neither requires nor authorizes our doing so.

Id. at 187. Thus, Pennsylvania courts have declined to construe McQuiggin

and Martinez as creating additional exceptions to the PCRA’s timeliness 

requirements. Because the PCRA court did not err in concluding that 

Appellant failed to plead and prove any of the exceptions to the PCRA’s 

timeliness requirements, it properly dismissed Appellant’s petition and did 

not have to address his ineffectiveness claims. See Wilson, 824 A.3d at 

833. Accordingly, we affirm. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2017