J-S17041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

VICTOR E. BROWN, JR., :

:

Appellant : No. 1491 EDA 2016

Appeal from the PCRA Order April 25, 2016

in the Court of Common Pleas of Chester County,

Criminal Division, No(s): CP-15-CR-0000621-1980

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 01, 2017

Victor E. Brown, Jr. (“Brown”), appeals, pro se, from the Order 

dismissing his second Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In July 1980, a jury found Brown guilty of second-degree murder and 

related offenses, after his vehicle struck and killed a Pennsylvania State 

Trooper stationed at a roadblock, following a police chase, on April 17, 

1980.1 Relevant to the instant appeal, Brown was twenty-three years of age 

at the time of the crime. In March 1982, the trial court sentenced Brown, in 

pertinent part, to life in prison for the murder conviction, applying the 

 

1 Two criminal cases were initiated against Brown in 1980 in Chester County. 

The first case was initiated on the date of the crime, April 17, 1980, and 

docketed at CP-15-CR-621-1980 (hereinafter “Case No. 621”). The second 

case was initiated on May 12, 1980, and docketed at CP-15-CR-989-1980 

(hereinafter “Case No. 989”). On December 31, 1980, all of the charges at 

Case No. 989 were nolle prossed. Accordingly, all of Brown’s convictions are 

under Case No. 621. 
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mandatory life sentence found in 18 Pa.C.S.A. § 1102(b). This Court 

affirmed Brown’s judgment of sentence. See Commonwealth v. Brown, 

504 A.2d 360 (Pa. Super. 1985) (unpublished memorandum). 

Brown filed his first PCRA Petition, pro se, in May 2012. The PCRA 

court appointed Brown counsel, who thereafter filed a Petition to Withdraw 

as Counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc). The PCRA court granted counsel’s Petition to Withdraw, and 

dismissed Brown’s PCRA Petition in July 2013. Brown did not appeal.

On March 18, 2016, Brown filed a second, pro se PCRA Petition, under 

an incorrect docket number, Case No. 989, asserting that his mandatory 

sentence of life in prison was rendered unconstitutional by recent United 

States Supreme Court decisions. The PCRA court later issued a Pennsylvania 

Rule of Criminal Procedure 907 Notice of Intent to Dismiss the Petition 

without an evidentiary hearing. Brown filed a pro se Response to the Rule 

907 Notice. By an Order entered on April 25, 2016, the PCRA court 

dismissed Brown’s Petition,2after which Brown filed a timely pro se Notice of 

Appeal. 

On July 25, 2016, Brown refiled an identical PCRA Petition under the 

correct docket number, Case No. 621. On October 4, 2016, the PCRA court 

 

2

In support of the dismissal, the PCRA court issued a Pa.R.A.P. 1925(a) 

Opinion, stating that Brown was not entitled to collateral relief because he 

had no convictions at Case No. 989. 
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issued a supplemental Pa.R.A.P. 1925(a) Opinion (filed under both case nos. 

621 and 989), stating that, in the interest of judicial economy, the court 

would deem Brown’s prior PCRA Petition, filed on March 18, 2016 (at Case 

No. 989), to be appropriately filed at the correct docket number, Case No. 

621.

To avoid further delay and the possibility of unproductive duplication of 

effort, in the interest of judicial economy, we shall “regard as done that 

which ought to have been done,” and consider this appeal as being filed at 

Case No. 621, and timely taken from the April 25, 2016 Order dismissing 

Brown’s PCRA Petition.

3

 Accord Commonwealth v. Allen, 420 A.2d 653, 

654 n.3 (Pa. Super. 1980) (where the trial court order from which the 

defendant appealed had not been entered on the trial court’s docket, 

declining to quash the appeal “[i]n the interest of judicial economy, [and] we 

shall exercise our power under Pa.R.A.P. 105(a) and regard as done that 

which ought to have been done.”); see also Pa.R.A.P. 105(a) (permitting an 

appellate Court to disregard requirements of the appellate rules in the 

interest of expediting a decision).

Brown has failed to include in his pro se brief a statement of questions 

involved, as required by Pennsylvania Rules of Appellate Procedure 

2111(a)(4) and 2116(a). However, we will overlook this defect, as we can 

discern Brown’s issue from the Argument section of his brief. See, e.g., 

 

3 We observe that the Commonwealth does not contest the procedural 

propriety of this appeal. 
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Bailey v. Storlazzi, 729 A.2d 1206, 1210 (Pa. Super. 1999) (stating that 

an appellant’s failure to include issues in statement of questions presented 

“may be overlooked where [an] appellant’s brief suggests the specific issue 

to be reviewed and appellant’s failure does not impede our ability to address 

the merits of the issue.”).

When reviewing an order dismissing a PCRA petition, we examine 

whether the determination of the PCRA court is supported by the record and 

free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. 

Super. 2014). The merits of a PCRA petition cannot be addressed unless the 

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely 

filed. Id. 

Any PCRA petition must be filed within one year of the date the 

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). Here, Brown concedes 

that his instant PCRA Petition is facially untimely, as it was filed 29 years 

after December 1986, when his judgment of sentence became final. 

However, Pennsylvania courts may consider an untimely petition if the 

appellant can explicitly plead and prove one of three exceptions set forth 

under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of 

these exceptions “shall be filed within 60 days of the date the claim could 

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
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Here, Brown cites the United States Supreme Court’s decision in Miller 

v. Alabama, 132 S. Ct. 2455 (2012), and invokes the newly-recognized 

constitutional right exception codified at 42 Pa.C.S.A. § 9545(b)(1)(iii). 

Brief for Appellant at 9.4 In Miller, the Court held that sentencing schemes 

that mandate life in prison without parole for defendants who committed 

their crimes while under the age of eighteen violate the Eighth 

Amendment’s prohibition on “cruel and unusual punishments.” Miller, 132 

S. Ct. at 2460. The Court reasoned that in light of a juvenile’s diminished 

culpability and heightened capacity for change, mandatory juvenile 

sentencing schemes pose too great a risk of disproportionate punishment, in 

contravention of the Eighth Amendment. Id. at 2469.5

Nevertheless, Brown argues that the right espoused in Miller should 

apply to him even though he was 23 years of age at the time of the murder. 

Brief for Appellant at 7-8, 9. Brown cites a medical journal article, titled 

Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience 

Research in Adolescent Health Policy, which purportedly states that “[t]he 

frontal lobes [of the brain], home to key components of the neural circuitry 

underlying executive functions such as planning, working memory, and 

impulse control, ... are the last areas of the brain to mature; they may not 

 

4 Though Brown does not expressly invoke the exception at section 

9545(b)(1)(iii) in his brief, he invoked it in his PCRA Petition.

5

In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States 

Supreme Court held that its decision in Miller applies retroactively. Id. at 

736. 
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be fully developed until halfway through the third decade of life.” Brief for 

Appellant at 7 (emphasis omitted). 

This Court has already rejected this precise argument. Specifically, in 

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the coappellants, who were 19 and 21 years old, respectively, at the time of their 

crimes (for which they received sentences of life in prison), argued that 

Miller applied to them because the human brain does not fully develop until 

the age of 25, and because “it would be a violation of equal protection for 

the courts to treat [the co-appellants,] or anyone else with immature brains, 

as adults.” Id. at 764. This Court rejected these claims, emphasizing that 

the co-appellants’ “contention that a newly-recognized constitutional right 

should be extended to others does not render their petition timely pursuant 

to section 9545(b)(1)(iii).” Id. (emphasis in original); see also

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016)

(reaffirming Cintora’s holding).

Thus, based on Cintora and Furgess, the rule announced in Miller

does not apply to Brown, who was not a juvenile at the time of the murder. 

Accordingly, Brown has failed to establish the exception of section 

9545(b)(1)(iii) to overcome the untimeliness of his second PCRA Petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/2017