J-S17041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
VICTOR E. BROWN, JR.,                     :
                                          :
                  Appellant               :           No. 1491 EDA 2016

                   Appeal from the PCRA Order April 25, 2016
               in the Court of Common Pleas of Chester County,
              Criminal Division, No(s): CP-15-CR-0000621-1980

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 01, 2017

      Victor E. Brown, Jr. (“Brown”), appeals, pro se, from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In July 1980, a jury found Brown guilty of second-degree murder and

related offenses, after his vehicle struck and killed a Pennsylvania State

Trooper stationed at a roadblock, following a police chase, on April 17,

1980.1 Relevant to the instant appeal, Brown was twenty-three years of age

at the time of the crime. In March 1982, the trial court sentenced Brown, in

pertinent part, to life in prison for the murder conviction, applying the



1
 Two criminal cases were initiated against Brown in 1980 in Chester County.
The first case was initiated on the date of the crime, April 17, 1980, and
docketed at CP-15-CR-621-1980 (hereinafter “Case No. 621”). The second
case was initiated on May 12, 1980, and docketed at CP-15-CR-989-1980
(hereinafter “Case No. 989”). On December 31, 1980, all of the charges at
Case No. 989 were nolle prossed. Accordingly, all of Brown’s convictions are
under Case No. 621.
J-S17040-17


mandatory life sentence found in 18 Pa.C.S.A. § 1102(b).          This Court

affirmed Brown’s judgment of sentence. See Commonwealth v. Brown,

504 A.2d 360 (Pa. Super. 1985) (unpublished memorandum).

     Brown filed his first PCRA Petition, pro se, in May 2012.     The PCRA

court appointed Brown counsel, who thereafter filed a Petition to Withdraw

as Counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).    The PCRA court granted counsel’s Petition to Withdraw, and

dismissed Brown’s PCRA Petition in July 2013. Brown did not appeal.

     On March 18, 2016, Brown filed a second, pro se PCRA Petition, under

an incorrect docket number, Case No. 989, asserting that his mandatory

sentence of life in prison was rendered unconstitutional by recent United

States Supreme Court decisions. The PCRA court later issued a Pennsylvania

Rule of Criminal Procedure 907 Notice of Intent to Dismiss the Petition

without an evidentiary hearing. Brown filed a pro se Response to the Rule

907 Notice.    By an Order entered on April 25, 2016, the PCRA court

dismissed Brown’s Petition,2 after which Brown filed a timely pro se Notice of

Appeal.

     On July 25, 2016, Brown refiled an identical PCRA Petition under the

correct docket number, Case No. 621. On October 4, 2016, the PCRA court


2
  In support of the dismissal, the PCRA court issued a Pa.R.A.P. 1925(a)
Opinion, stating that Brown was not entitled to collateral relief because he
had no convictions at Case No. 989.


                                 -2-
J-S17040-17


issued a supplemental Pa.R.A.P. 1925(a) Opinion (filed under both case nos.

621 and 989), stating that, in the interest of judicial economy, the court

would deem Brown’s prior PCRA Petition, filed on March 18, 2016 (at Case

No. 989), to be appropriately filed at the correct docket number, Case No.

621.

       To avoid further delay and the possibility of unproductive duplication of

effort, in the interest of judicial economy, we shall “regard as done that

which ought to have been done,” and consider this appeal as being filed at

Case No. 621, and timely taken from the April 25, 2016 Order dismissing

Brown’s PCRA Petition.3 Accord Commonwealth v. Allen, 420 A.2d 653,

654 n.3 (Pa. Super. 1980) (where the trial court order from which the

defendant appealed had not been entered on the trial court’s docket,

declining to quash the appeal “[i]n the interest of judicial economy, [and] we

shall exercise our power under Pa.R.A.P. 105(a) and regard as done that

which ought to have been done.”); see also Pa.R.A.P. 105(a) (permitting an

appellate Court to disregard requirements of the appellate rules in the

interest of expediting a decision).

       Brown has failed to include in his pro se brief a statement of questions

involved, as required by Pennsylvania Rules of Appellate             Procedure

2111(a)(4) and 2116(a). However, we will overlook this defect, as we can

discern Brown’s issue from the Argument section of his brief.        See, e.g.,

3
  We observe that the Commonwealth does not contest the procedural
propriety of this appeal.


                                      -3-
J-S17040-17


Bailey v. Storlazzi, 729 A.2d 1206, 1210 (Pa. Super. 1999) (stating that

an appellant’s failure to include issues in statement of questions presented

“may be overlooked where [an] appellant’s brief suggests the specific issue

to be reviewed and appellant’s failure does not impede our ability to address

the merits of the issue.”).

      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error.   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014). The merits of a PCRA petition cannot be addressed unless the

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely

filed. Id.

      Any PCRA petition must be filed within one year of the date the

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). Here, Brown concedes

that his instant PCRA Petition is facially untimely, as it was filed 29 years

after December 1986, when his judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.




                                 -4-
J-S17040-17


      Here, Brown cites the United States Supreme Court’s decision in Miller

v. Alabama, 132 S. Ct. 2455 (2012), and invokes the newly-recognized

constitutional right exception codified at 42 Pa.C.S.A. § 9545(b)(1)(iii).

Brief for Appellant at 9.4 In Miller, the Court held that sentencing schemes

that mandate life in prison without parole for defendants who committed

their crimes while under the age of eighteen violate the Eighth

Amendment’s prohibition on “cruel and unusual punishments.” Miller, 132

S. Ct. at 2460. The Court reasoned that in light of a juvenile’s diminished

culpability   and   heightened   capacity   for   change,   mandatory   juvenile

sentencing schemes pose too great a risk of disproportionate punishment, in

contravention of the Eighth Amendment. Id. at 2469.5

      Nevertheless, Brown argues that the right espoused in Miller should

apply to him even though he was 23 years of age at the time of the murder.

Brief for Appellant at 7-8, 9.   Brown cites a medical journal article, titled

Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience

Research in Adolescent Health Policy, which purportedly states that “[t]he

frontal lobes [of the brain], home to key components of the neural circuitry

underlying executive functions such as planning, working memory, and

impulse control, … are the last areas of the brain to mature; they may not

4
  Though Brown does not expressly invoke the exception at section
9545(b)(1)(iii) in his brief, he invoked it in his PCRA Petition.
5
 In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States
Supreme Court held that its decision in Miller applies retroactively. Id. at
736.


                                   -5-
J-S17040-17


be fully developed until halfway through the third decade of life.” Brief for

Appellant at 7 (emphasis omitted).

      This Court has already rejected this precise argument. Specifically, in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-

appellants, who were 19 and 21 years old, respectively, at the time of their

crimes (for which they received sentences of life in prison), argued that

Miller applied to them because the human brain does not fully develop until

the age of 25, and because “it would be a violation of equal protection for

the courts to treat [the co-appellants,] or anyone else with immature brains,

as adults.” Id. at 764. This Court rejected these claims, emphasizing that

the co-appellants’ “contention that a newly-recognized constitutional right

should be extended to others does not render their petition timely pursuant

to   section   9545(b)(1)(iii).”   Id.   (emphasis   in   original);   see   also

Commonwealth v. Furgess, 149              A.3d 90, 94      (Pa. Super. 2016)

(reaffirming Cintora’s holding).

      Thus, based on Cintora and Furgess, the rule announced in Miller

does not apply to Brown, who was not a juvenile at the time of the murder.

Accordingly, Brown has failed to establish the exception of section

9545(b)(1)(iii) to overcome the untimeliness of his second PCRA Petition.

      Order affirmed.




                                   -6-
J-S17040-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




                          -7-
