J

### -S78036-18 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
GEORGE BOOKER

### Appellant : No. 1094 EDA 2018 Appeal 

### from the PCRA Order March 15, 2018 In the Courtof Common Pleas

### of Philadelphia CountyCriminal Division at No(s): CP-51-CR-0833171-1989
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E. MEMORANDUM BY STEVENS, P.J.E.: 

### FILEDJANUARY

### 07, 

### 2019 Appellant, George Booker, appeals 

### from the March 15, 2018, order entered in the Court of Common Pleas of Philadelphia 

### County dismissing his serial 

### petitionfiled underthe Post Conviction ReliefAct, 42 Pa.C.S.A. §§

### 9541- 9546. 

### After a careful review, we

### affirm. The PCRA 

### court has 

### adequately set 

### forth the procedural 

### history underlyingthis appeal as 

### follows: On June 11, 1990, 

### [Appellant] was convicted at a

### jury trial presided over by the Honorable David 

### Savitt of 

### first-degree murder, possession of an 

### instrument ofcrime and a 

### violation of the Uniform Firearms Act. 

### [Appellant] was sentenced on 

### that same date to life in prison 

### [without the 

### possibility of parole] 

### for the 

### murderconviction and to two 

### concurrent prison 

### terms oftwo and a 

### half years to 

### five years 

### for his remaining convictions. 

### [Appellant] did notfile a

### directappeal of his

### judgmentofsentence. On July 8, 1992, 

### [Appellant] filed 

### [a] pro se PCRA 

### petition. Counselwas

### appointed, and 

### ultimately, [Appellant's] directappeal 

### rights were reinstated 

### nuncprotunc. A

### timely appeal wasfiled to
FormerJustice specially assigned to theSuperior Court.J

### -S78036-18
the Pennsylvania 

### Superior Court. On March 30, 1994, the 

### Superior Court affirmed his 

### judgment of sentence. The Pennsylvania Supreme Court denied allowance of appeal on February 10, 1995. On May 10, 1999, 

### [Appellant] filed a 

### pro se PCRA 

### petition, which was 

### treated as a 

### first petition.['] Appointed counsel filed a 

### Turner/Finley2 "no

### -merit" letter. The PCRA 

### court denied 

### relief, and the Superior Court affirmed the PCRA 

### court's decision on 

### August 17, 2001. 

### [Appellant] was 

### subsequently unsuccessful in 

### obtaining collateral relief through a serial PCRA 

### petition filed in 2013. On March 1, 2016, 

### [Appellant] filed the 

### instantprose PCRA 

### petition. [Appellant] also 

### submitted a 

### supplemental petition which was reviewed 

### jointly with his 

### petition. Pursuantto Pennsylvania Rule of Criminal Procedure 907, 

### [Appellant] was served 

### with notice of 

### the PCRA 

### court's intention to dismiss his 

### petition on December 13,2017. 

### [Appellant] submitted a responsetothe Rule 907 notice on January 2, 2018. On March 15, 2018, the PCRA 

### court dismissed his PCRA 

### petition as 

### untimely. On April 5, 2018, the 

### instant notice ofappeal was

### timelyfiled to theSuperior Court.
PCRA Court Opinion, filed 

### 5/29/18, at 1-2 

### (footnote in 

### original) (footnote added) (some

### footnotes 

### omitted). Preliminarily, we 

### must determine 

### whether Appellant's instant PCRA 

### petition was 

### timely filed. 

### See 

### Commonwealth v. 

### Hutchins, 760 A.2d 50 (Pa.Super. 

### 2000). In reviewing the 

### propriety of the PCRA 

### court's dismissal of 

### Appellant's 

### petition, we are 

### limited to 

### determining whether the PCRA 

### court's

1 Since

### Appellant's initial PCRA 

### petition resulted in the 

### restoration of his

### direct appeal 

### rights nuncpro tunc, the PCRA 

### court properly treated this 

### petition as a 

### first PCRA 

### petition. See 

### Commonwealth v. 

### Karanicolas, 836 A.2d 940 (Pa.Super. 

### 2003).

2 

### Commonwealth v. 

### Turner, 518 Pa. 

### 491, 544 A.2d 927 

### (1988), and 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa.Super. 1988) (enbanc).

- 2 -J

### -S78036-18 findings are 

### supported by the record, and 

### whether the 

### order is free of legal 

### error. 

### Commonwealth v.

### Allen, 557 Pa. 135, 732A.2d 582 

### (1999). Pennsylvania law makes itclear

### that no 

### court has

### jurisdiction to hear an 

### untimely PCRA 

### petition. 

### Commonwealth v. 

### Robinson, 575 Pa. 500, 837 A.2d 1157 

### (2003). The 

### most recent amendments to the PCRA, 

### effective January 19, 1996, provide 

### that a PCRA 

### petition, including a second or subsequent 

### petition, shall be filed 

### within one

### year ofthe date the 

### underlying 

### judgment becomes 

### final. 42 Pa.C.S.A. § 

### 9545(b)(1). A

### judgment is deemed final 

### "at the conclusion of 

### direct review, including 

### discretionary review in the SupremeCourt ofthe United States and the Supreme Court of Pennsylvania,
oratthe

### expiration ofthe

### timeforseeking 

### review."42 Pa.C.S.A. § 

### 9545(b)(3). The 

### three 

### statutory exceptions to the 

### timeliness provisions in

### the PCRA allow 

### for 

### very limited circumstances under which the late 

### filing of a 

### petition will beexcused. 42 Pa.C.S.A. §

### 9545(b)(1). To invokean

### exception, a 

### petition must allege and the 

### petitionermust prove: (i) the 

### failure to raise a claim 

### previously was the result of 

### interference by 

### government officials with the presentation ofthe claim in 

### violation of the 

### Constitution or the law of

### this Commonwealth or 

### the Constitution or law of the United 

### States; (ii) the facts upon which the claim is predicated were unknown to the 

### petitioner and could not have been ascertained bythe exerciseof due 

### diligence; or 

### (iii) the 

### right asserted is a 

### constitutional right 

### that was recognized bythe Supreme Court of Pennsylvania 

### after the

### time period provided in

### thissection and has been held by

### that court to 

### apply 

### retroactively. 

## -3J

### -S78036-18
42 Pa.C.S.A. § 

### 9545(b)(1)(i)-(iii). "We emphasize 

### that it is the 

### petitionerwho bears the burden to allege and prove

### that one of the 

### timeliness exceptions applies." 

### Commonwealth
v. 

### Marshall, 596 Pa. 587, 947 A.2d 714, 719 

### (2008) (citation 

### omitted). Moreover, 

### "the PCRA 

### limits the reach 

### of the exceptions by 

### providing 

### that a 

### petition invoking any of the exceptions 

### must be filed 

### within 60 days 

### of the datethe claim

### firstcould have been 

### presented."

### Commonwealthv. 

### Walters, 135 A.3d 589, 592 (Pa.Super. 

### 2016) (citations 

### omitted). See 42 Pa.C.S.A. § 

### 9545(b)(2). With regard to the case sub

### judice, this Court has 

### previously held the 

### following: Because 

### [Appellant] did not file a 

### petition for a 

### writ of 

### certiorari with the United States Supreme Court, 

### [Appellant's] 

### judgment of sentence became final 90 days 

### after February 10, 1995, the date on which the Pennsylvania Supreme Court denied allowance of appeal. 

### See U.S. Supreme Court Rule 13 

### (effective January 1, 1990) 

### (stating 

### that a 

### petition for 

### writ of 

### certiorari to review the

### judgment ofsentence is deemed 

### timelywhen it is filed 

### within90 days

### afterthe

### entryofthe

### judgmentofsentence). Thus, 

### for the purposes 

### of Section 

### 9545, the 

### judgment of sentence became final on May 11, 1995. 

### Commonwealth v. 

### Booker, 3304 EDA2000, at

### *4 (Pa.Super. filed 

### 8/17/01) (unpublished 

### memorandum). Accordingly, Appellant's instant PCRA 

### petition, whichwas filed on March 1, 2016, is 

### patently untimely.



## -4J

### -S78036-18 However, 

### this does not end our 

### inquiry as 

### Appellant invokes 

### Montgomery v. 

### Louisiana, U.S. , 136 S.Ct. 718 

### (2016),3 and contends 

### that he has 

### met 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.A. § 

### 9545(b)(1)(iii). In 2012, the Supreme Court of the United States 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.' 

### Miller v. 

### Alabama, 567 U.S. 

### 460, 465, 132 S.Ct. 2455 

### (2012) (emphasis added). In 

### Montgomery, supra, the High Court determined 

### that 

### Millerannounced a new 

### substantive rule 

### of law 

### that applies 

### retroactively. 

### Montgomery, 136 S.Ct. at 736. Here, 

### Appellant was not under the age of 18 when he 

### murdered his 

### victim and, in 

### fact, he was 20 years old. 

### See Appellant's Brief at 6, 11, 13 

### (admitting Appellant was 20 years old when he 

### committed his 

### crime). This

3The High 

### Courtfiled 

### Montgomeryon January 27, 2016, and 

### Appellantfiled the 

### instant PCRA 

### petition on March 1, 2016. 

### Accordingly, Appellant filed his 

### instant petitionwithinthe requisite

### sixty day

### threshold. See

### Commonwealth v. 

### Boyd, 923 A.2d 513, 517 (Pa.Super. 

### 2007) 

### ("[W]ith regard to 

### [the newly] recognized 

### constitutional right 

### [exception],.

. .the 

### [sixty] dayperiod beginsto run upon the date 

### ofthe underlying 

### judicial decision."). 

## -5J

### -S78036-18
Court has held 

### that because 

### Millerdoes not 

### apply to a 

### petitionerwho was 18 years or 

### older at

### the time he 

### committed murder, such 

### petitioner cannot rely
on 

### Miller (or 

### Montgomery) to avail 

### himself of the 

### time-bar exception in subsection

### 9545(b)(1)(iii). See

### Commonwealth v. 

### Montgomery, 181 A.3d 359, 366 (Pa.Super. 2018 (en banc) (holding 

### that the High Court's ruling in 

### Montgomeryv. 

### Louisiana did not extend

### Miller's holding to 

### individuals who 

### committed homicides

### after they reached the age of 18). 

### Appellant seeks to avail 

### himself of the holding of 

### Miller by asserting 

### that he was a de facto 

### juvenile when he 

### committed the 

### murder because 

### "scientists [have] found 

### thatthe human brain does not

### fully develop 

### until one reaches 

### their mid

### -twenties." Appellant's Briefat 6, 

### 8-9. We conclude 

### this is
an 

### argument for an 

### extension ofthe holding 

### of

### Millerto persons convicted of 

### murder who were older at the 

### time of 

### their crimes than the class 

### of defendants subject to the 

### Miller holding. "A 

### contention 

### that a newly- recognized 

### constitutional right

### should be extended to 

### others does not render 

### [a] petition [seeking an expansion of the 

### right] timely pursuant to Section 

### 9545(b)(1)(iii)." Commonwealth v. 

### Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (emphasis in 

### original). This Court has 

### previously refused to 

### render relief on an

### appellant's brain science 

### argument. See 

### Commonwealth v. 

### Furgess, 149 A.3d 90, 94 (Pa.Super. 

### 2016) 

### (rejecting the 19

### -year-old 

### appellant's 

### argument based on 

### neuroscientifictheories of brain 

### development

### that he is 

### entitled to PCRA 

### relief 

## -6J

### -S78036-18
because he was a 

### "technical 

### juvenile"at the 

### time he 

### committed his 

### crimes). Consequently, Appellant has not 

### met the 

### timeliness exception of Section 

### 9545(b)(1)(iii). Finally, to the

### extentAppellant relies on

### Alleyne v. 

### UnitedStates, 570 U.S. 99, 133 S.Ct. 2151 

### (2013), his claim fails as he did not raise his

### Alleyne claim 

### "within 60 days of the date the claim could have been 

### presented." 42 Pa.C.S.A. § 

### 9545(b)(2). The United States Supreme Court decided 

### Alleyne
on June 17, 

### 2013; however, Appellant filed his 

### instant petition in which he presented hisclaim on March 1, 2016. Thus,

### Appellantfailed to 

### properly plead the newly-recognized 

### constitutional right exception to the PCRA's 

### one-year time-bar.4 See 

### Boyd,

### supra. We agree 

### with the PCRA 

### court 

### that Appellant's instant PCRA 

### petition is 

### untimely and 

### Appellant has not satisfied any exception to the PCRA's 

### timeliness requirements. Therefore, this Court, as well as the PCRA 

### court, lacks

### jurisdiction to considerthe 

### merits of

### Appellant's claims.

4 Moreover, 

### neither the United States Supreme Court nor the Pennsylvania Supreme Court has held 

### that 

### Alleyne applies 

### retroactively to cases on 

### collateral review. Indeed, the Pennsylvania SupremeCourt has

### expressly held 

### that 

### "Alleyne does not 

### apply 

### retroactively to cases pending on 

### collateral 

### review." 

### Commonwealth v. 

### Washington, 636 Pa. 301, 142 A.3d 810, 820 

### (2016). As such, 

### for this independent reason, 

### Alleyne does not 

### satisfy the newly-recognized 

### constitutional right exception set

### forth at § 

### 9545(b)(1)(iii). 

### Commonwealth v. 

### Miller, 102 A.3d 988, 995 (Pa.Super. 2014) ("This Court has recognized 

### that a new rule of

### constitutional law is applied 

### retroactively to cases on 

### collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be 

### retroactively applicable to those cases."). 

## -7J

### -S78036-18
For all ofthe foregoing reasons, we 

### affirm. Affirmed. Judgment Entered. 

# ,--- Jseph D. 

### Seletyn, Prothonotary

Date: 

### 1/7/19



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