J-S61028-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

MICHAEL HARRISON 

 Appellant No. 561 WDA 2014 

Appeal from the PCRA Order of February 6, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No.: CP-02-CR-0007837-1999 

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.* 

MEMORANDUM BY WECHT, J.: FILED OCTOBER 31, 2014 

 Michael Harrison appeals the February 6, 2014 order that dismissed 

without a hearing his petition for relief pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. 

 Attendant to Harrison’s direct appeal, the trial court summarized the 

facts of the case as follows: 

On March 7, 1994, Kevin Lee stole a four-door, 1986 Olds 

Cutlass Cierra and drove it to Isaac Butler’s house in the Larimer 

Avenue section of Pittsburgh. There[, Harrison], Lee and Butler 

discussed perpetrating a retaliation shooting to avenge the death 

of Butler’s brother, who had been killed in December, 1992, in a 

shooting by rival CRIP gang members. 

[Harrison] gave Butler a .380 semi-automatic pistol. Lee had a 

sawed-off shotgun. [Harrison] drove Lee and Butler to the area 

of Lincoln Avenue where they turned up Dean Street. There 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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they observed Byron Patton and Jason Gaines walking down the 

street. Either Lee or Butler yelled at [Harrison] to stop the car, 

and they got out while [Harrison] remained in the car. 

[Harrison] heard four shots from the handgun, a pause, 

screaming, and a loud blast consistent with a shotgun being 

fired.1 Lee and Butler ran back to the car and [Harrison] drove 

away. 

1

 On May 14, 1998, [Harrison] gave a statement to 

Pittsburgh Homicide Detective Thomas Foley, in which he 

essentially confessed to being an accomplice to first degree 

murder. 

* * * 

Officers William Gorman and Charles Johnson arrived at the 

scene at 10:30 P.M. They found Patton on the porch of 3528 1⁄2 

Dean Street with a gunshot wound to the head and Gaines shot 

in the neck, shoulder and arm. Two large caliber casings were 

found adjacent to the porch area. Three .380 shell casings and a 

bullet fragment were found on the sidewalk. 

[Harrison] drove back to Butler’s house, where the three men 

stayed for a couple of hours and discussed getting rid of the 

vehicle. Around 3:00 A.M., Lee took the shotgun and left. 

[Harrison] hid the .380 under the porch of an abandoned house 

across the street from Butler’s house. [Harrison] and Butler 

drove the car to Washington Boulevard, turned off under the 

Lincoln Avenue bridge and abandoned it. As they were doing so, 

the police pulled up and [Harrison] and Butler escaped up a 

flight of stairs. Officer Scott Curly recovered the vehicle and 

found a .380 casing in a vent in the windshield. 

In November, 1994, a .380 semi-automatic was recovered in a 

desk in a dormitory area assigned to Travis Hill at the Keystone 

Job Corps Center in Luzerne County. Hill lived in the Larimer 

section of Pittsburgh, and while home for Thanksgiving, a friend 

told him that a gun was hidden under a rock between two 

abandoned houses. The gun, cartridge casings and bullet 

fragment were submitted to the Allegheny County Crime Lab for 

testing. The casings and fragment were found to have been 

fired from the gun. 

Byron Patton was pronounced dead at 1:33 A.M. on March 8, 

1994, at Presbyterian University Hospital. His body was taken to 

the Allegheny County Coroner’s Office where an autopsy was 
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performed by Dr. Eric Vey. The cause of death was a gunshot 

wound to the head. 

Trial Court Opinion (“T.C.O.”), 12/18/2000, at 2-3 (citations to record 

omitted). Harrison was seventeen years old at the time of the murder. 

 On March 29, 2000, following a jury trial, Harrison was found guilty of 

first-degree murder. 18 Pa.C.S.A. § 2501(a). That same day, Harrison was 

sentenced to life in prison. Harrison filed a direct appeal. On February 29, 

2004, this Court affirmed his judgment of sentence. Commonwealth v. 

Harrison, 622 WDA 2002, slip. op. at 13 (Pa. Super. Feb. 19, 2004). On 

March 19, 2004, Harrison filed a petition for allowance of appeal with the 

Pennsylvania Supreme Court. That petition was denied on June 17, 2004. 

Commonwealth v. Harrison, 853 A.2d 360 (Pa. 2004) (Table). 

 On March 16, 2005, Harrison timely filed a first PCRA petition. 

Counsel was appointed and filed an amended petition. On July 27, 2006, the 

PCRA court dismissed Harrison’s petition without a hearing. On August 28, 

2006, Harrison filed a notice of appeal. On March 11, 2008, this Court 

affirmed the PCRA court’s order. Commonwealth v. Harrison, 953 A.2d 

599 (Pa. Super. 2008) (Table). Harrison filed a petition for allowance of 

appeal which was denied by the Pennsylvania Supreme Court on November 

17, 2008. Commonwealth v. Harrison, 960 A.2d 837 (Pa. 2008) (Table). 

 On July 13, 2012, Harrison filed the instant PCRA petition. On 

November 6, 2013, the PCRA court filed its notice of its intention to dismiss 

the petition without a hearing pursuant to Pa.R.Crim.P. 907. Harrison filed a 
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response to the Rule 907 notice. On December 14, 2013, the PCRA court 

gave Harrison leave to amend his PCRA petition and re-issued its Rule 907 

notice. Harrison filed another response. On January 17, 2014, the PCRA 

court gave leave for Harrison to further amend his petition and again reissued its Rule 907 notice. On February 6, 2014, the PCRA court dismissed 

the PCRA petition without a hearing. 

 On March 26, 2014, Harrison filed a notice of appeal.1 The PCRA court 

did not order a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a) opinion, the PCRA court 

issued a statement indicating that it dismissed Harrison’s PCRA petition 

because it was untimely. 

 Harrison raises one issue for our review: “Did [the PCRA] court 

erroneously interpret Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 

[2012], in its conclusion that Miller is not retroactive dismissing PCRA as 

untimely?” Harrison’s Brief at viii (emphasis removed). 

Before we reach the merits of Harrison’s issue on appeal, we first must 

ensure we have jurisdiction to do so. The PCRA time limits are jurisdictional, 

and must be strictly construed, regardless of the potential merit of the 

____________________________________________ 

1

 Although Harrison’s notice of appeal was docketed on March 26, 2014, 

it is postmarked on March 3, 2014. Because Harrison is pro se and in 

prison, he is entitled to the benefit of the prisoner mail box rule and we 

consider his appeal timely because it was mailed prior to the deadline for 

filing even though it was docketed after the deadline. See Commonwealth 

v. Jones, 700 A.2d 423, 426 (Pa. 1997). 
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claims asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. 

Super. 2011). A court lacks jurisdiction to reach the merits of a PCRA 

petition if it is untimely. Id.

Despite facial untimeliness, a PCRA petition will be considered timely if 

the petitioner pleads and proves one of the three exceptions to the one-year 

time limit enumerated in subsection 9545(b), which provides: 

(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: 

(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. 

(2) Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim 

could have been presented. 

42 Pa.C.S.A. § 9545(b). When an appellant files a facially untimely PCRA 

petition, and fails to plead and prove one or more of the exceptions to the 

PCRA’s one-year jurisdictional time limit, the petition is untimely and we 

must deny the appellant relief. Commonwealth v. Gamboa-Taylor, 753 
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A.2d 780, 783 (Pa. 2000). Even when one of the exceptions may apply to a 

given petition, it will excuse the untimeliness only if the petition was filed 

within sixty days of the date that the conditions underlying the exception 

came to light. Id. at 784. 

 Here, Harrison’s judgment of sentence became final on or about 

September 15, 2004, when the time period in which he could file a petition 

for certiorari with the United States Supreme Court expired. Therefore, he 

had until on or about September 15, 2005 to file a timely PCRA petition. 

This petition, filed on July 13, 2012, facially is untimely. 

 However, Harrison has pleaded that an exception applies; to wit, that 

Miller provides a new constitutional right. See 42 Pa.C.S.A. 

§ 9545(b)(1)(iii). Because Miller was filed on June 25, 2012, Harrison’s 

petition was filed within the sixty-day time period as delineated in 42 

Pa.C.S.A. § 9545(b)(2). In Miller, the Supreme Court held that mandatory 

life sentences without the possibility of parole for juvenile offenders violate 

the Eighth Amendment’s prohibition against cruel and unusual or excessive 

punishments. Miller, 132 S. Ct. at 2469. The Court declined to address 

whether its holding applied retroactively to sentences administered prior to 

the Court’s ruling. 

 Our Supreme Court has held that Miller’s mandate does not apply 

retroactively. Commonwealth v. Cunningham, 81 A.3d 1, 10-11 (Pa. 

2013). To establish an exception to the PCRA time bar, the petitioner must 

plead and prove that the constitutional right has been recognized by the 
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United States or Pennsylvania Supreme Court and “has been held by that 

court to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). We explained 

in Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014): 

Recently, in Cunningham, our Supreme Court held that the 

constitutional right announced by the United States Supreme 

Court in Miller does not apply retroactively. 81 A.3d at 10. 

Consequently, [a]ppellant cannot rely upon Miller or subsection 

9545(b)(iii) to establish jurisdiction over his untimely PCRA 

petition in any Pennsylvania court. Hence, we lack the 

jurisdiction to review the merits of [a]ppellant’s issues . . . . 

Id. at 243. 

 Because Harrison is unable to prove that an exception applies, his 

PCRA petition is untimely. The PCRA court did not err in treating it as such, 

and it lacked jurisdiction over the petition. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/31/2014