J-S46035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES INGE, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3980 EDA 2017

Appeal from the PCRA Order, November 3, 2017,

in the Court of Common Pleas of Philadelphia County, 

Criminal Division at No(s): CP-51-CR-0902201-1973.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 10, 2018

James Inge appeals from the order denying his second petition for postconviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 

Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history may be summarized as 

follows: On April 3, 1974, a jury convicted Inge of first-degree murder and 

robbery. At the time of the victim’s murder, Inge claims he was nineteen 

years old.1 On January 9, 1975, the trial court sentenced him to an aggregate

term of life in prison without the possibility of parole. Inge filed an appeal to 

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1 The Commonwealth disputes Inge’s statement that his birthday is in March 

1953, and refers to electronic records from the case which indicate that his 

birthday is in March 1950. See Commonwealth’s Brief at 2. As shall be 

discussed below, this discrepancy does not affect our conclusion that Inge is 

not entitled to post-conviction relief. 
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our Supreme Court and, on May 12, 1976, the Court affirmed his judgment of 

sentence. Commonwealth v. Inge, 356 A.2d 771 (Pa. 1976). Inge did not 

seek further review.

Inge filed a petition for relief under the former Post Conviction Hearing 

Act in 1978, the trial court denied the petition, and our Supreme Court 

affirmed the denial of post-conviction relief on October 16, 1981. 

Commonwealth v. Inge, 435 A.2d 179 (Pa. 1981).

On August 21, 2012, Inge filed the PCRA at issue, his second, seeking 

relief pursuant to the United States Supreme Court’s recent decision in Miller 

v. Alabama, 567 U.S. 460 (2012). On July 24, 2017, the PCRA court issued 

Pa.R.Crim.P. 907 notice of intent to dismiss Inge’s petition without a hearing.

2

 

Inge filed his response on August 1, 2017. By order entered November 3, 

2017, the PCRA court denied Inge’s petition as untimely. This appeal follows. 

The PCRA court did not require Pa.R.A.P. 1925 compliance.

Inge raises the following issues:

I. Did the PCRA court err in rejecting [Inge’s] claim that 

Miller v. Alabama’s constitutional requirement of 

consideration of age-related factors prior to imposing 

life without parole sentences applies to [Inge] who 

[possessed] those characteristics of youth identified 

as constitutionally significant for sentencing purposes 

by the U.S. Supreme Court?

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2

It is not clear from the record why an almost five-year delay occurred 

between the time Inge filed his second petition and the PCRA court issued its 

Rule 907 notice.
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II. Did the PCRA court err in rejecting [Inge’s] claim that 

Pennsylvania law permitting mandatory sentences of 

life without parole for crimes committed by 19 yearolds lacks a rationale [basis] in light of Miller’s 

prohibition against such sentences for [offenders] 

aged 17 and younger and therefore violates the equal 

protection clauses of the United States and 

Pennsylvania Constitutions?

III. Did the PCRA court abuse its discretion in failing to 

hold an evidentiary hearing where [Inge] had raised 

issues of material fact that entitle him to relief?

Inge’s Brief at 4 (excess capitalization omitted).3

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified record. 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, 

a PCRA court may decline to hold a hearing on the petition if the PCRA court 

determines that petitioner’s claim is patently frivolous and is without a trace 

of support in either the record or from other evidence. Commonwealth v. 

Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

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3

In a letter received by this Court on July 23, 2018, Inge stated that he wished 

to “waive” his second issue. In addition, we reject Inge’s assertion that, 

because he is proceeding pro se, we apply a “less stringent standard.” Inge’s 

Brief at 2. See generally Commonwealth v. Freeland, 106 A.2d 768 (Pa. 

Super. 2014) 
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Before addressing the issues raised by Inge, we must first determine

whether the PCRA court correctly concluded that Inge’s PCRA petition is 

untimely. 

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

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 

is final unless the petition alleges, and the petitioner proves, that an exception 

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections 

9545(b)(1)(i), (ii), and (iii), is met.4 42 Pa.C.S.A. § 9545. A PCRA petition 

invoking one of these statutory exceptions must “be filed within 60 days of 

the date the claims could have been presented.” See Hernandez, 79 A.3d 

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4 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).

 
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651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Finally, 

exceptions to the PCRA’s time bar must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues 

not raised before the lower court are waived and cannot be raised for the first 

time on appeal).

Inge’s judgment of sentence became final over thirty years ago. As 

Inge filed the instant petition in 2012, it is patently untimely unless he has 

satisfied his burden of pleading and proving that one of the enumerated 

exceptions applies. See Hernandez, supra.

Inge has failed to establish any exception to the PCRA’s time bar. He 

asserts that the PCRA court erred in denying him post-conviction relief

because he had satisfied the “newly-established constitutional right” exception 

pursuant to the United States Supreme Court’s opinion in Miller v. Alabama, 

supra. As acknowledged by Inge, the high court in Miller held that a statute 

requiring a mandatory life sentence without possibility of parole for a juvenile

convicted of first or second-degree murder violates the Eighth Amendment’s 

prohibition against cruel and unusual punishment. Our review of the record 

in this case, however, supports the PCRA court’s conclusion that Miller is 

inapplicable to Inge because he was over the age of eighteen at the time he 

committed the murder. See PCRA Court Opinion, 11/28/17, at 1.

Moreover, although Inge presents a lengthy discussion claiming that he 

was “developmentally an adolescent,” See Inge’s Brief at 11-37, to date 
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Pennsylvania precedent has rejected this argument as an unwarranted 

extension of Miller.

5 See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. 

Super. 2016) (rejecting petitioner’s claim that, based upon “neuroscientific 

theories regarding immature brain development, he was a “technical 

juvenile”). As this Court recognized in Furgess, “[a] contention that a newlyrecognized constitutional right should be extended to other[s] does not 

render [a] petition [seeking such an expansion of the right] timely pursuant 

to Section 9545(b)(1)(iii). Id. (citing Commonwealth v. Cintora, 69 A.3d 

759, 764 (Pa. Super. 2013).6

In sum, because Inge was at least nineteen years old when he 

committed the murder, the PCRA court correctly concluded that he could not 

meet the “new constitutional right” exception to the PCRA’s time bar. Thus, 

it lacked jurisdiction to consider Inge’s claims, and we affirm the order denying 

post-conviction relief.

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5

Inge attaches an amicus curiae brief filed in another case to support his 

assertion that “there is a very clear national consensus trending toward 

restricting mandatory life without [parole] sentences, especially in the case 

where defendants are eighteen (18) and nineteen year olds [adolescents].” 

Inge’s Reply Brief at 1. As this is not proper material for a reply brief, we will 

not consider it. See Pa.R.A.P. 2113 (“the appellant may file a brief in reply to 

matters raised by appellee’s brief . . . No further briefs may be filed except 

with leave of court”).

6

Inge argues that Cintora and Furgess should be overruled. Inge’s Brief at 

11. We disagree. Moreover, even if we were to agree with Inge, as a threemember panel, we are unable to do so. See Commonwealth v. Taggert,

997 A.2d 1189, 1201 n.16 (Pa. Super. 2010) (noting that one three-judge 

Superior Court panel cannot overrule another panel).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/18