J-S42015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MELVIN WHITE, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3162 EDA 2018

Appeal from the PCRA Order Entered September 21, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1106081-1979

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED OCTOBER 21, 2019

Melvin White appeals, pro se, from the order entered September 21, 

2018, in the Court of Common Pleas of Philadelphia County denying, without 

a hearing, his third petition filed pursuant to the Post Conviction Relief Act 

(PCRA).1 In this timely appeal, White claims the PCRA court erred in: (1) 

denying scientific evidence regarding brain science as meritless; and (2) 

failing to apply the United States Supreme Court’s decisions in Miller v. 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
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Alabama, 567 U.S. 460 (2012),

2 and Montgomery v. Louisiana, ––– U.S. 

––––, 136 S.Ct. 718 (2016).3 After a thorough review of the parties’ briefs, 

certified record, relevant law, we affirm.4

We briefly summarize the facts and procedural history as follows. On 

October 29, 1979, when White was 23 years old, he and a co-defendant 

decapitated White’s common-law wife in front of their two young children, 

then displayed the severed head to the police. On April 4, 1983, a jury found 

White guilty of first-degree murder. The trial court sentenced White to life 

imprisonment for the murder conviction. This Court affirmed the judgment of 

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2 The Miller Court held that mandatory sentences of life imprisonment without 

parole for minors were unconstitutional, due to the immaturity of a minor’s 

brain development.

3 The Montgomery Court held that the Miller decision was entitled to 

retroactive application on collateral review.

4 White appears to assert the PCRA court erred in not granting his request for 

an extension of time to file a response to the Pa.R.Crim.P. 907 notice. 

However, for the reasons discussed below, we find the claim does not merit 

relief. This Court has held the “failure to issue Rule 907 notice is not reversible 

error where the record is clear that the petition is untimely.” Commonwealth 

v. Zeigler, 148 A.3d 849, 852 n.2 (Pa. Super. 2016). Given this, we fail to 

see how the failure to grant an extension of time to file a response to a Rule 

907 notice in a case where the PCRA petition is plainly untimely is reversible 

error. Moreover, our review of White’s brief demonstrates that his proposed 

response was merely a reiteration of his contention that Miller/Montgomery

should apply to him, a declaration that we will discuss in detail below. Further, 

White argues the PCRA court erred in not ordering him to file a Pa.R.A.P. 

1925(b) statement; this averment lacks merit because the PCRA court is not 

required to issue such an order. See Pa.R.A.P. 1925(b). 
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sentence on March 29, 1985. Commonwealth v. White, 494 A.2d 487 (Pa.

Super. 1985). The Pennsylvania Supreme Court denied allocatur on July 25, 

1985. White subsequently filed two PCRA petitions.

On March 29, 2016, White filed the instant PCRA petition, his third, 

claiming although he was 23 years old at the time of his wife’s murder, and 

although Miller only applies to those defendants who were under the age of 

18 at the time of the crime, he should be entitled to relief because

scientifically, his brain was not fully developed. On January 26, 2017, White 

filed an amended PCRA petition. On August 20, 2018, the PCRA court issued 

a Rule 907 notice of intent to dismiss. On September 7, 2018, White filed a 

motion for extension of time to file a response to the Rule 907 notice, upon 

which the court did not rule.

5

 On September 21, 2018, the PCRA court 

dismissed the petition as untimely filed. On October 19, 2018, White filed the 

instant, timely appeal. The PCRA court did not order White to file a concise

statement. On October 19, 2018, the PCRA court issued an opinion. 

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Here, the PCRA court determined, 

inter alia, that White’s petition was untimely. We agree. A petitioner must 

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5 On September 25, 2018, White file a response to the Rule 907 notice. 
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file a PCRA petition within one year of the date the underlying judgment 

becomes final. See 42 Pa.C.S. § 9545(b)(1).

The PCRA timeliness requirement, however, is mandatory and 

jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 

1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951 

A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1, 

753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s 

untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 

572 U.S. 1151 (2014).

White’s judgment of sentence became final on September 25, 1985, 90 

days after the Pennsylvania Supreme Court denied his petition for allowance 

of appeal and the time for filing a petition for writ of certiorari before the 

United States Supreme Court expired. See U.S.Sup.Ct. Rule 13; 42 Pa.C.S.A. 

§ 9545(b)(3). Therefore, he had until September 25, 1986, to file a timely 

PCRA petition.6 The one before us, filed March 29, 2016,

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is patently untimely.

Nevertheless, we may still consider an untimely PCRA petition if one of 

the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-

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6 We recognize the 1995 amendments to the PCRA provided a one-year grace 

period for a petitioner to file a first petition when his judgment of sentence 

was final before the effective date of the amendment, that is, January 16, 

1996. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 n.2 (Pa. 

2010). The present petition, however, is White’s third, and, in any event, he 

filed it approximately 20 years later.

7 Although White filed his petition in March 2016, for reasons that are not 

apparent from the record, the PCRA court did not take any action on the 

petition until late August 2018.
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(iii). Here, White contends his petition meets the newly recognized 

constitutional right exception, which provides an avenue for relief if the 

petitioner pleads and proves:

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). For claims arising prior to December 24, 2017, 

a petitioner invoking an exception must file his petition within 60 days of the 

date he or she could have presented the claim.

8 See Act 2018, Oct. 24, P.L. 

894, No. 146, §2 and §3. Here, White asserts the combination of the U.S. 

Supreme Court decisions in Miller and Montgomery satisfies the timeliness 

exception. 

As noted above, White has claimed entitlement to the application of 

Miller/Montgomery because, at 23 years old at the time of his crime, his 

brain had not fully developed as described by the Supreme Court in Miller. 

However, in a recent, en banc decision, this Court considered and rejected 

this very argument. Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) 

(en banc). 

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8 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. § 

9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness 

exception must file the petition within one year of the date the claim could 

have been presented, for all claims arising after December 24, 2017. See Act 

2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Accordingly, the one-year 

extension does not apply to White’s March 29, 2016 petition.
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In Lee, the defendant was 18 years and nine-months old when she was 

involved in a robbery that resulted in the death of the victim. Id. at 3. Relying 

on Miller/Montgomery, the defendant filed a PCRA petition arguing that she 

was a “virtual minor” at the time of the crime and “the rationale underlying 

the Miller holding, including consideration of characteristics of youth and agerelated facts identified as constitutionally significant by the Miller Court, 

provides support for extending the benefit of Miller to her case.” Id. A panel 

of this Court disagreed, stating:

It is not this Court’s role to override the gatekeeping function of 

the PCRA time-bar and create jurisdiction where it does not exist. 

The PCRA’s time limitations “are mandatory and interpreted 

literally; thus, a court has no authority to extend filing periods 

except as the statute permits.” Commonwealth v. Fahy, 558 

Pa. 313, 737 A.2d 214, 222 (1999). The period for filing a PCRA 

petition “is not subject to the doctrine of equitable tolling.” Id.

We recognize the vast expert research on this issue. If this matter 

were one of first impression and on direct appeal, we might 

expound differently. However, we are an error-correcting court. 

Until the United States Supreme Court or the Pennsylvania 

Supreme Court recognizes a new constitutional right in a nonjuvenile offender, we are bound by precedent. We conclude, as 

we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa. 

Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa. 

Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759 

(Pa. Super. 2013) abrogation on other grounds recognized in

Furgess, supra at 94], that age is the sole factor in determining 

whether Miller applies to overcome the PCRA time-bar and we 

decline to extend its categorical holding.

Lee, supra at 11 (footnote omitted). Thus, the PCRA court correctly 

concluded that it lacked jurisdiction to consider White’s third PCRA petition. 

Pursuant to Lee, we affirm the PCRA court’s order denying White relief.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/19