J-S55036-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

FELIX ROSADO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 75 MDA 2017

Appeal from the PCRA Order December 15, 2016, 

in the Court of Common Pleas of Berks County, 

Criminal Division, at No(s): CP-06-CR-0000098-1996

BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 25, 2017

Felix Rosado (Appellant) appeals from the December 15, 2016 order 

which denied his petition for relief filed pursuant to the Post Conviction Relief 

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

When he was 18 years old, Appellant shot and killed Hiep Q. Nguyen. 

Appellant pled guilty to first-degree murder and was sentenced to life 

imprisonment without possibility of parole in 1996. Appellant filed no direct 

appeal, and his initial attempts at obtaining PCRA relief were unsuccessful. 

On March 22, 2016,1 Appellant filed the PCRA petition that is the 

subject of this appeal. Counsel entered an appearance on Appellant’s behalf 

in May 2016, and, after being granted several extensions, filed an amended 

 

1 Although the petition was not docketed until March 28, 2016, it appears 

that it was put in the hands of prison authorities on March 22, 2016. Hence, 

the filing date, pursuant to the prisoner mailbox rule, is March 22. See, 

e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006).
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petition. On November 4, 2016, the PCRA court filed, pursuant to 

Pa.R.Crim.P. 907, a notice of its intent to dismiss Appellant’s petition as 

untimely filed. On December 15, 2016, after considering Appellant’s 

response to the Rule 907 notice, the PCRA court dismissed the petition as 

untimely filed. 

Appellant timely filed a notice of appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant claims that 

his petition should not have been dismissed as untimely filed, and that he 

should have been granted an evidentiary hearing to develop his proof 

regarding his immaturity at the time of the crime and “his coming to his 

senses at age 27” and becoming a model citizen. Appellant’s Brief at 3, 10.

Our first task is to determine whether Appellant’s PCRA petition was 

timely filed, as the timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011). 

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. “[W]hen a PCRA petition is not filed within one year of the 

expiration of direct review, or not eligible for one of the three limited 

exceptions, or entitled to one of the exceptions, but not filed within 60 days 

of the date that the claim could have been first brought, the [PCRA] court 
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has no power to address the substantive merits of a petitioner’s PCRA 

claims.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

It is clear that Appellant’s petition is facially untimely: his judgment of 

sentence became final in 1996. However, Appellant alleges that his petition, 

filed within 60 days of the United States Supreme Court’s decision in 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), meets the following 

timeliness exception: “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). 

In Miller v. Alabama, 567 U.S. 460 (2012), the Court held “that 

mandatory life without parole for those under the age of 18 at the time 

of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and 

unusual punishments.’” Id. at 465 (emphasis added). In Montgomery, 

the Court determined that Miller announced a new substantive rule of law 

that applies retroactively. Montgomery, 136 S. Ct. at 736. 

Appellant was not under the age of 18 when he murdered Nguyen. 

This Court has expressly held that “petitioners who were older than 18 at the 

time they committed murder are not within the ambit of the Miller decision 

and therefore may not rely on that decision to bring themselves within the 

time-bar exception in [subs]ection 9545(b)(1)(iii).” Commonwealth v. 
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Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing Commonwealth v. 

Cintora, 69 A.3d 759 (Pa. Super. 2013)). 

Appellant attempts to distinguish Furgess and Cintora by noting that 

the petitioners in those cases argued that Miller’s holding should be 

extended to convicts who, although they were older than 18 when they 

committed murder, otherwise met the criteria relied upon by the Court in 

deciding Miller. See, e.g., Miller, 567 U.S. at 471-72 (“[D]evelopments in 

psychology and brain science continue to show fundamental differences 

between juvenile and adult minds—for example, in parts of the brain 

involved in behavior control. ... [T]hose findings—of transient rashness, 

proclivity for risk, and inability to assess consequences—both lessened a 

child’s moral culpability and enhanced the prospect that, as the years go by 

and neurological development occurs, his deficiencies will be reformed.”) 

(internal citations and quotation marks omitted). 

Appellant claims that he is not seeking an extension of Miller’s 

holding. Rather, he notes that, at only a few months past his eighteenth 

birthday at the time of the murder, he was still considered a minor or a child 

under some statutes, Appellant’s Brief at 29-31, and he claims that “the 

scientific foundation adopted in Miller requires such application to youths 

whose characteristics bring them within the ambit of Miller although they 

may be marginally older than their eighteenth birthday.” Id. at 28 

(emphasis in original). 
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Appellant makes a false distinction. He is asking this Court to apply to 

him, a person who was over 18 at the time he murdered a man, the Miller

decision that is expressly applicable only to people under the age of 18. Call 

it what he will, Appellant is asking us to extend Miller’s holding. This 

Court’s binding precedent precludes us from doing so. See Cintora and 

Furgess. 

Despite the arguable applicability to Appellant of the scientific evidence 

relied upon by the Miller court in reaching its holding as to children under 

18, it is clear that neither the United States nor the Pennsylvania Supreme 

Court has announced a new, retroactively-applicable constitutional rule 

regarding mandatory sentences of life without parole given to immature 18-

to-25-year-olds convicted of murder. Therefore, Appellant cannot satisfy the 

subsection 9545(b)(1)(iii) exception to the PCRA’s timeliness requirements. 

Accordingly, the PCRA court properly dismissed Appellant’s petition without 

holding a hearing. See Commonwealth v. Albrecht, 994 A.2d 1091, 1095 

(Pa. 2010) (affirming dismissal of PCRA petition without a hearing because 

the appellant failed to establish a timeliness exception).

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/25/2017