J-S01041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

RAPHAEL TAN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 433 EDA 2019

Appeal from the Order Entered January 2, 2019

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1103141-1996

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: Filed: March 23, 2020

Raphael Tan (Appellant) appeals from the January 2, 2019 order 

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In March 2000, following a bench trial, Appellant was convicted of two 

counts of first-degree murder, possessing an instrument of crime, criminal 

conspiracy, and aggravated assault. Appellant was sentenced to two 

concurrent terms of life imprisonment for the murders, and concurrent terms 

of five to ten years of imprisonment for aggravated assault and ten to 

twenty years of imprisonment for conspiracy. On appeal, this Court affirmed 

his judgment of sentence on November 8, 2001, and our Supreme Court 

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* Retired Senior Judge assigned to the Superior Court.
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denied his petition for allowance of appeal. Commonwealth v. Tan, 792 

A.2d 619 (Pa. Super. 2001) (unpublished memorandum), appeal denied, 

796 A.2d 982 (Pa. 2002). Appellant did not seek review before the Supreme 

Court of the United States, and therefore, his judgment of sentence became 

final in 2002. In the years following this Court’s affirmation of his judgment 

of sentence, Appellant filed two PCRA petitions, but neither merited relief.

On September 21, 2012, Appellant filed pro se the PCRA petition that 

is the subject of this appeal. In his petition, Appellant deemed that his 

petition was filed timely and challenged his sentence based on the 

constitutional right recognized by the United States Supreme Court in Miller 

v. Alabama, 567 U.S. 460 (2012), that it is cruel and unusual punishment 

to sentence a juvenile to a mandatory sentence of life imprisonment without 

parole. Pro se PCRA Petition, 9/21/2012, at 2-3. Appellant contended, 

citing a litany of legal authority without any factual averments, that even 

though he was 21 when he committed the crimes, Miller applied to him.

1

Id. at 2.

On September 6, 2018, the PCRA court issued Appellant notice 

pursuant to Pa.R.Crim.P. 907 that it planned to dismiss his petition without a 

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1 Appellant mistakenly stated he was 21 years old at the time he committed 

the crimes; however, he was 20 years old. Appellant was born October 4, 

1972, and the crimes occurred on August 24, 1993.
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hearing as untimely filed.2 Appellant filed a response in which he attempted 

to invoke the newly-recognized constitutional right exception to the PCRA’s 

time bar.3 Appellant’s 907 Response, 9/20/2018, at 2 (citing Montgomery 

v. Louisiana, 136 S.Ct. 718 (2016) (concluding that the Court’s holding in 

Miller prohibiting mandatory life without parole sentences for juvenile 

offenders applied retroactively)).

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2 The certified record offers no explanation for the almost six-year delay 

between the filing of Appellant’s third PCRA petition and the issuance of the 

PCRA Court’s Rule 907 notice. Our Supreme Court has made clear that 

“[t]he PCRA court [has] the ability and responsibility to manage its docket 

and caseload and thus has an essential role in ensuring the timely resolution 

of PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 

2012) (citing Commonwealth v. Porter, 35 A.3d 4, 24-25 (Pa. 2012) 

(“[T]he court, not counsel, controls the scope, timing and pace of the 

proceedings below.”)).

3 This exception provides as follows.

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

***

(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)(iii).
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On January 2, 2019, the PCRA court dismissed Appellant’s petition as 

untimely filed, stating that Appellant was unable to avail himself of the 

newly-recognized constitutional right set forth in Miller because he was over 

18 at the time he committed the murders.

This timely-filed appeal followed. The PCRA court did not order 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), but complied with the mandates of Pa.R.A.P. 

1925(a) by filing an opinion.

On appeal, Appellant asks us to decide whether the PCRA court erred 

by dismissing his petition as untimely filed, and argues that the 

constitutional right recognized in Miller, which was made retroactively 

applicable in Montgomery, should apply to him. Appellant’s Brief at 2-3. 

Appellant argues, inter alia, that Miller should not be read so narrowly as to 

confine its application to individuals under the age of 18, particularly 

because individuals between the ages of 18 and 25 have the same type of 

immaturity as young teenagers. Id. at 6-10.

We review the court’s order mindful of the following. Generally, a 

petition for relief under the PCRA, including a second or subsequent petition, 

must be filed within one year of the date the judgment of sentence is final 

unless the petition alleges, and the petitioner proves, that an exception to 

the time for filing the petition is met. 42 Pa.C.S. § 9545. In addition, 

exceptions must be pleaded within 60 days of the date the claim could have 
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been presented. 42 Pa.C.S. § 9545(b)(2).4 Because the PCRA’s time 

restrictions are jurisdictional in nature, neither this Court nor the PCRA court 

has the power to address the merits of a petition if it is filed untimely and 

the petitioner did not plead and prove an applicable time-bar exception. 

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013).

It is clear that Appellant’s petition filed on September 21, 2012 is 

facially untimely; his judgment of sentence became final in 2002. Appellant 

attempts to invoke Miller and Montgomery to argue that the newlyrecognized and retroactively-applicable constitutional right exception to the 

PCRA’s time bar applies to him. Appellant’s Brief at 2-3, citing 42 Pa.C.S. § 

9545(b)(1)(iii). However, the arguments Appellant sets forth in his brief 

have been resolved already by this Court and do not serve to establish the 

newly-recognized and retroactively-applicable exception to the PCRA’s time 

bar. Because Appellant was 20 years old when he committed his crimes, 

Miller does not apply and cannot be used to render his petition timely filed 

pursuant to subsection 9545(b)(1). See Commonwealth v. Lee, 206 A.3d 

1 (Pa. Super. 2019) (en banc) (holding that Miller applies only to 

defendants who were under the age of 18 at the time of their crimes; 

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4 Although inapplicable to this appeal, we note that subsection 9545(b)(2) 

was amended on October 24, 2018, effective in 60 days (December 24, 

2018), extending the time for filing from sixty days of the date the claim 

could have been presented, to one year. See Act 2018, Oct. 24, P.L. 894, 

No. 146, § 3.
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therefore, based on current law, Miller cannot be relied upon to establish 

the PCRA time-bar exception at subsection 9545(b)(1)(iii) for those 18 and 

older at the time of their crimes). Accordingly, the PCRA court did not err in 

dismissing Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/20