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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOHN AIKENS, :

:

Appellant : No. 2106 EDA 2014

Appeal from the PCRA Order July 1, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0406531-1993

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015

Appellant, John Aikens, appeals pro se from the order entered in the 

Philadelphia County Court of Common Pleas, dismissing his untimely request 

for relief under the Post Conviction Relief Act1(“PCRA”). On appeal, he 

contends his petition was timely pursuant to Miller v. Alabama, 132 S. Ct. 

2455 (2012). We affirm.

The PCRA court summarized the facts and procedural history of this 

case as follows:

[Appellant] was found guilty after a non-jury waiver 

trial of first degree murder, criminal conspiracy, and 

possession of an instrument of crime before the Honorable 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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Judge Jane Cutler Greenspan on July 7, 1994.[2] Also on 

July 7, 1994, [Appellant] was sentenced by Judge 

Greenspan to serve a life sentence on the murder 

conviction as well as to concurrent sentences of 

incarceration, which in the aggregate totaled seven and 

one-half to fifteen years. After [Appellant] filed his timely 

appeal, the Superior Court affirmed the judgment of 

sentence on July 26, 1995.[3] No further appeal was filed.

[Appellant] filed his first pro se [PCRA] petition on 

March 4, 1996. Thereafter counsel was appointed, and the 

petition was denied[4]on May 2, 1997, after a hearing was 

held before Judge Greenspan on April 8, 1997. [Appellant] 

filed an appeal from that order on May 30, 1997. The 

Superior Court affirmed the [PCRA] court’s denial of relief 

on April 17, 1998. The Supreme Court denied allocatur on 

December 3, 1998.

[Appellant] filed his [second] post conviction petition on 

June 12, 2013. 

PCRA Ct. Op., 10/29/2014, at 1-2 (footnote omitted). On October 29, 2014, 

the PCRA court determined Appellant’s second petition for post conviction 

collateral relief was untimely and that none of the timeliness exceptions 

 

2 At the time of the homicide, Appellant was over the age of eighteen. PCRA 

Ct. Op. at 4. 

3 Commonwealth v. Aikens, 2747 PHL 1994 (unpublished memorandum) 

(Pa. Super. July 26, 1995).

4 We note the PCRA court dismissed Appellant’s first petition. See

Commonwealth v. Aikens, 2307 Philadelphia 1997 (unpublished 

memorandum at 3) (Pa. Super. April 17, 1998).
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applied. Id. at 2. The PCRA dismissed Appellant’s petition as untimely. 

Order, 7/1/14. This timely appeal followed.5

Appellant raises the following issue for review, reproduced verbatim:

I. Did the lower Court err by denying the Appellants 

second and Subsequent PCRA Petition, where it was timely 

[filed] pursuant to, SEE: [42 Pa.C.S.A. § 9545 

(b)(i)(ii)(iii)(2)], and where the United States Court of 

Appeals for the Third Circuit granted that Petitioner has 

made a prima facie claim that the [claim] he seeks to 

present relies on a decision pursuant to, SEE [Miller v. 

Alabama; 132 S. Ct. 2455, 2460 (2012)], in which 

announced “a new rule of Constitutional law, made 

retroactive to cases on Collateral Review by the Supreme 

Court, that was previously unavailable. SEE: [28 U.S.C. § 

2244(b)(2)(A)] [Citing, SEE: [In re Pendleton; 732 F.3d 

280 (3d. Cir. 2013)]???

Appellant’s Brief at 3.

Appellant argues his petition was timely and alleges the violation of a 

constitutional right recognized after the expiration of the one-year time-bar, 

which he claims applies retroactively. Id. at 10. He avers Miller held it 

unconstitutional to impose a life sentence without the possibility of parole 

upon a juvenile convicted of murder.

Before examining the merits of Appellant’s claims, we consider 

whether the PCRA court had jurisdiction to entertain the underlying PCRA 

petition.

We . . . turn to the time limits imposed by the PCRA, as 

they implicate our jurisdiction to address any and all of 

 

5 Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal.
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Appellant’s claims. To be timely, a PCRA petition must be 

filed within one year of the date that the petitioner’s 

judgment of sentence became final, unless the petition 

alleges and the petitioner proves one or more of the 

following statutory exceptions:

(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).

We emphasize that it is the petitioner who bears the 

burden to allege and prove that one of the timeliness 

exceptions applies. In addition, a petition invoking any of 

the timeliness exceptions must be filed within 60 days of 

the date the claim first could have been presented. 42 

Pa.C.S. § 9545(b)(2). . . .

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some 

citations omitted) (emphasis added). Our Supreme Court has stated:

This Court has repeatedly stated that the PCRA timeliness 

requirements are jurisdictional in nature and, accordingly, 

a PCRA court cannot hear untimely PCRA petitions. In 

addition, we have noted that the PCRA confers no 

authority upon this Court to fashion ad hoc equitable 

exceptions to the PCRA time-bar in addition to those 

exceptions expressly delineated in the Act. We have also 
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recognized that the PCRA’s time restriction is 

constitutionally valid. 

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations 

and quotation marks omitted). 

Under the PCRA, “all petitions, including second and subsequent ones, 

must be filed within one year of the date on which the judgement becomes 

final, unless one of the statutory exception . . . applies.” Commonwealth 

v. Yarris, 731 A.2d 581, 586 (Pa. 1999). On July 26, 1995, this Court 

affirmed his judgment of sentence. Appellant did not seek further review. 

Thus, his judgment became final on August 28, 1995.6 See 42 Pa.C.S § 

9545(b)(3) (providing “a judgment becomes final at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of time 

for seeking review [ ]”. Appellant had until August 28, 1996, to file his PCRA 

petition.7 See 42 Pa.C.S. § 9545(b)(1); Marshall, 947 A.2d at 719. 

Therefore, because he filed the instant PCRA on June 12, 2013, it is patently 

untimely. 

 

6 August 26, 1995 fell on a Saturday. Therefore, his judgment of sentence 

became final on August 28, 1995. See 1 Pa.C.S. § 1908.

7

“Effective January 16, 1996, the PCRA was amended to require a petitioner 

to file any PCRA petition within one year of the date the judgment of 

sentence becomes final.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. 

Super. 2014). This was Appellant’s second PCRA petition, thus it does not 

qualify for the grace proviso allowing a first PCRA to be filed by January 16, 

1997. Id. at 4-5.
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Appellant argues his petition is timely pursuant to Miller. In 

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134 

S. Ct. 2724 (2014), our Supreme Court held that Miller was not retroactive 

and opined:

Here, applying settled principles of appellate review, 

nothing in [Appellant’s] arguments persuades us that 

Miller’s proscription of the imposition of mandatory lifewithout-parole sentences upon offenders under the age of 

eighteen at the time their crimes were committed must be 

extended to those whose judgments of sentence were final 

as of the time of Miller’s announcement.

Id. at 11.

The PCRA court reasoned that “[e]ven if [Appellant] had been under 

the age of eighteen and had filed his petition within sixty days of the date 

Miller was handed down, he still would have the burden of establishing that 

this [c]ourt had jurisdiction to address his petition[,]” because Miller did not 

apply retroactively. PCRA Ct. Op. at 4 (unpagniated). We agree.

Our Pennsylvania Supreme Court held Miller did not apply 

retroactively. See Cunningham, 81 A.3d at 11. Therefore, the section 

9545(b)(1)(iii) exception to the PCRA’s time restrictions is unavailing. Thus, 

the PCRA court lacked jurisdiction to consider Appellant’s claims. See 

Robinson, 837 A.2d at 1161. Accordingly, the PCRA court’s ruling is free of 

legal error. See Marshall, 947 A.2d at 719.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015