Com. v. Brewington, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH BREWINGTON :
:
Appellant : No. 219 EDA 2017
Appeal from the PCRA Order August 9, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0503022-1989
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018
Keith Brewington appeals from the order denying, as untimely, his
fourth PCRA petition. We affirm.
We previously set forth the facts in our decision affirming judgment of
sentence on direct appeal:
On the night of March 11, 1989, Appellant was instructed by
Melvin Troy Williams (Williams), his “employer,” to call Melvin
“Daddyo” Williams (the victim) at his home and inform him that
Appellant would drive to his house and pick him up. Williams
believed that the victim had helped a rival gang kill “Taboo”, who
was a member of Williams’ gang. Evidence presented by the
Commonwealth established that Appellant and Williams were
allegedly involved in an illegal drug business where a hierarchy
is in place and orders get handed down from the top. In
accordance with this chain of command, Appellant asked
Christopher Brown (Brown) to place the call. Appellant and
Brown then picked up the victim and took him to a
predetermined spot where Michael Black, Keith Washington, and
Elliot Moore (the co-defendants) awaited his arrival. At this
spot, the victim was killed in the front seat of the car by the co-
defendants’ shower of gunfire.
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Commonwealth v. Brewington, 740 A.2d 247, 250–51 (Pa.Super. 1999)
(citations to transcript omitted), appeal denied, 758 A.2d 660 (Pa. 2000).1
Appellant was eighteen when he committed these crimes.
Appellant thereafter filed a timely pro se PCRA petition. Appointed
counsel filed an amended petition, which the PCRA court ultimately
dismissed without a hearing, and we affirmed. Commonwealth v.
Brewington, 852 A.2d 1244 (Pa.Super. 2004). His second and third PCRA
petitions were both untimely, and we affirmed the dismissals of both on
appeal. Commonwealth v. Brewington, 907 A.2d 1129 (Pa.Super. 2006)
(second petition); Commonwealth v. Brewington, 953 A.2d 594
(Pa.Super. 2008) (third petition).
This litigation concerns Appellant’s fourth attempt to secure PCRA
relief. We note that it is unclear exactly how many petitions are at issue in
this appeal. Following our denial of Appellant’s third PCRA petition, the
docket reflects that a motion was filed on October 6, 2011, with a notation
stating “[Appellant]’s Motion for ‘Fraud’ treated as a petition for post-
conviction relief.” That document is not contained in the certified record.
The next entry in the docket is August 10, 2012, which is in the
certified record and is a pro se PCRA petition seeking to raise Miller v.
Alabama, 567 U.S. 460 (2012), decided June 15, 2012. Miller held that
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1
Appellant was convicted of first-degree murder and criminal conspiracy.
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imposing a mandatory sentence of life imprisonment without the possibility
of parole for offenders who were under eighteen at the time of their crimes
violates the United States Constitution. Appellant recognized that the
petition was untimely, but asserted that Miller qualified as an exception to
the PCRA’s one-year time bar, and noted that his petition was filed within
sixty days of Miller. See 42 Pa.C.S. § 9545(b)(2) (any petition invoking an
exception must be filed within sixty days of date it could have been
presented). No immediate action was taken on this petition.
On March 23, 2016, Appellant filed another pro se PCRA petition, also
seeking to raise Miller. Appellant noted that, on January 25, 2016, the
United States Supreme Court decided Montgomery v. Louisiana, 136 S. Ct.
718 (2016), which held that States were required to grant retroactive effect
to Miller. Thus, this petition was also filed within sixty days as required.
The PCRA court issued a notice of intent to dismiss, which stated that
“Your petition, filed on May 9, 2011 was . . . untimely[.]” Notice, 6/1/16.2
Appellant filed a response in which he asserted, “[Appellant] can show and
prove that [f]raud was perpetrated . . . in order to get a [t]ainted
[c]onviction[.]” Response, 8/9/16, at 2. The PCRA court dismissed the
petition the same day it received the response.
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2
The PCRA court opinion states, “On October 6, 2011, Petitioner filed the
instant pro se PCRA petition, his fourth.” Opinion, 1/5/17, at 2. The
October petition was, as previously noted, captioned as a “motion for fraud.”
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Appellant filed a notice of appeal, docketed September 12, 2016,
which is four days after the expiration of the applicable thirty-day period.
The Commonwealth states that this appeal must be quashed. We decline to
do so. As our Supreme Court has stated:
The pro se prisoner’s state of incarceration prohibits him from
directly filing an appeal with the appellate court and prohibits
any monitoring of the filing process. Therefore, we now hold that
in the interest of fairness, a pro se prisoner’s appeal shall be
deemed to be filed on the date that he delivers the appeal to
prison authorities and/or places his notice of appeal in the
institutional mailbox.
Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 281 (Pa.
1996). Presently, the record indicates that the notice of appeal was
postmarked on September 12. The notice of appeal contains a hand
notation by Appellant indicating that he initiated the procedure of having the
appeal delivered through the prison system on September 8, the day the
appeal was due. Due to the short discrepancy between the hand notation
and postmarking, we accept that Appellant delivered the document for filing
on September 7 and deem the notice of appeal as timely filed under the
prisoner mailbox rule.
The PCRA court issued an opinion in lieu of requiring a Pa.R.A.P.
1925(b) statement. Appellant’s brief is difficult to read and is noncompliant
with the rules governing appellate briefs as, among other defects, it neglects
to include a statement of questions presented. We have gleaned the
following issues, taken from his headings:
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Did the [PCRA court] abuse his authority, discretion, violate his
oath of office, the rules of professional conduct, code of ethics,
thus violating [Appellant]’s United States, Federal, and
Pennsylvania constitutional, and due process rights?
Did [the PCRA court] improperly, and unreasonably dismiss, and
deny [Appellant]’s [PCRA] appeal as untimely when there was no
opposition from the Commonwealth, i.e. the district attorney,
and the [PCRA] was clearly timely filed by Judge Tucker’s own
admission?
Did [the PCRA court] error in dismissing, and denying
[Appellant]’s [PCRA] appeal based on inaccurate, and false
information?
Mandatory life without parole, terms for adults in non-homicide,
and homicide cases violates state, and federal equal protection
clauses, as well as article 7 of the universal declaration of human
rights.
Did [the PCRA court] [err] in not finding [Appellant] fit into a
subclass of those defined as juvenile, thus entitling him to the
same equal protection as his minor counterparts according to the
Pennsylvania Constitution, and common law definitions
mandating the same treatment?
Appellant’s brief.
We apply the following principles. Our standard of review
examines “whether the PCRA court’s determination is
supported by the evidence of record and free of legal error. We
grant great deference to the PCRA court’s findings, and we will
not disturb those findings unless they are unsupported by the
certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017
(Pa.Super. 2017) (citation omitted). A PCRA petition must be
filed within one year of the date the judgment of sentence
becomes final. 42 Pa.C.S. § 9545(b)(1). “This time constraint is
jurisdictional in nature, and is not subject to tolling or other
equitable considerations.” Commonwealth v. Spotz, ––– Pa. –
–––, 171 A.3d 675, 678 (2017) (citation omitted). The time bar
can “only be overcome by satisfaction of one of the three
statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–
(iii).” Id. “Questions regarding the scope of the statutory
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exceptions to the PCRA’s jurisdictional time-bar raise questions
of law; accordingly, our standard of review is de
novo.” Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
520, 522 n.1 (2006).
Commonwealth v. Robinson, 2018 WL 2041425, at *2 (Pa.Super. May 2,
2018) (en banc).
As Appellant’s judgment of sentence became final long ago, he was
required to establish that an exception to the PCRA’s one-year time bar
applied. These exceptions are:
(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)(i)-(iii).
Additionally, we note that in Commonwealth v. Montgomery, 181
A.3d 359 (Pa.Super. 2018) (en banc), we held that PCRA courts are not
jurisdictionally barred from considering serial PCRA petitions, provided that
there is not a pending appeal of a PCRA petition. Herein, the PCRA court
disposed of several PCRA petitions in one overarching order, which is
permitted by our en banc decision in Montgomery. We discern three
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separate petitions: first, the motion for fraud; second, the Miller petition;
and third, the Montgomery v. Louisiana petition.
Having set forth these points, we now address Appellant’s arguments.
Appellant’s brief is difficult to decipher, but his primary complaints are that
(1) the PCRA court acted improperly by denying his petition, since the
Commonwealth did not file a response, and (2) he is entitled to relief under
Miller/Montgomery.
Appellant repeatedly argues that the PCRA court “improperly played
the role of the District Attorney [by] research[ing]” his PCRA petitions.
Appellant’s brief at 4. However, Appellant fails to recognize that
Pa.R.Crim.P. 906(A) explicitly states that “an answer to a petition for post-
conviction collateral relief is not required unless ordered by the judge.” The
PCRA court saw no need to order a response in light of well-settled law, and
Appellant’s assumption that the PCRA court is obliged to grant relief in the
absence of opposition by the Commonwealth is simply incorrect. Therefore,
all of his complaints regarding the PCRA court’s purported interference are
meritless.
The remaining assertions all concern his Miller claim.3 Appellant
correctly notes that he filed for relief under both Miller and Montgomery
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3
To the extent that the “motion for fraud” petition is at issue, Appellant has
failed to establish any exception to the PCRA’s one-year time bar. Indeed,
(Footnote Continued Next Page)
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by filing a PCRA petition within sixty days of their respective decisions.
However, the Miller holding, which must be given effect pursuant to
Montgomery, simply does not apply to him. Appellant insists that “minors
are no less entitled to special considerations than their juvenile (subclass)
counterparts, particularly where age is not a statutory factor.” Appellants
brief at 14. As we have repeatedly stated, this is simply an argument that
Miller’s holding should extend to persons who were over the age of
eighteen. That claim does not satisfy the PCRA’s one-year time bar
limitation.
Here, if Appellant’s petition actually presented a valid claim
under Miller v. Alabama, Appellant would have met that 60-
day deadline because Miller was decided on June 25, 2012, and
Appellant filed his PCRA petition less than 60 days later, on
August 8, 2012. See generally Commonwealth v. Secreti,
134 A.3d 77, 82 (Pa.Super.2016). But even though he filed
within 60 days of the Miller decision, Appellant’s petition did not
satisfy the jurisdictional requirements of Section 9545 because
the petition did not present a claim falling within the ambit of the
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(Footnote Continued)
he insists that his allegation was not subject to the PCRA and that he was
absolutely entitled to a hearing:
Also Judge Tucker brings up the fact that a claim of "Fraud on
the Court" was made/claimed which he improperly included in a
P.C.R.A. when a claim of "Fraud on the Court" is deemed as an
independent action and can be raised at any time, and not
subject to the time-bar wherefore Judge Tucker had an
obligation to hold a hearing to determine whether Fr[au]d was
commit[t]ed on this Honorable Court, therefore [Appellant] is
enti[t]led to relief in the form of a hearing to determine whether
Fraud was in Fact committed.
Appellant’s brief at 3. This woefully undeveloped claim affords no relief.
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Supreme Court’s decision in Miller and therefore does not fall
under the “newly recognized constitutional right” exception in
Section 9545(b)(1)(iii).
The Miller decision applies to only those defendants who were
“under the age of 18 at the time of their crimes.” 132 S. Ct. at
2460. Both Appellant’s PCRA petition and his appellate brief
acknowledge that Appellant “was 19 years old at the time of his
offenses.” In this regard, the PCRA court noted that Appellant’s
birth date is December 3, 1968, and the murder occurred on
August 28, 1988, “making him nineteen years old on the date of
the murder.” The PCRA court therefore concluded that
Appellant’s “reliance on the Miller case for relief is misplaced”
because Appellant, “[b]y his own admission, was nineteen years
old when he committed the crime.” We agree.
Appellant argues that he nevertheless may
invoke Miller because he was a “technical juvenile,” and he
relies on neuroscientific theories regarding immature brain
development to support his claim that he is eligible for relief.
But, rather than presenting an argument that is within the scope
of the Miller decision, this argument by Appellant seeks
an extension of Miller to persons convicted of murder who
were older at the time of their crimes than the class of
defendants subject to the Miller holding.
We rejected reliance on this same argument for purposes of
Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
759 (Pa.Super.2013). The defendants in Cintora were 19 and
21 years old at the times of their crimes, but they argued
that Miller should apply to them and others “whose brains were
not fully developed at the time of their crimes.” Id. at 764. We
stated that “[a] contention that a newly-recognized
constitutional right should be extended to others does not
render [a] petition [seeking such an expansion of the right]
timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in
original).
Commonwealth v. Furgess, 149 A.3d 90, 93–94 (Pa.Super. 2016) (some
citations omitted).
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Accordingly, Appellant’s claim that he was a technical juvenile does not
satisfy the PCRA’s one-year time bar, as Miller does not apply to Appellant.
Therefore, the PCRA court correctly dismissed the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
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