J-S12017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

SIMEON SPENCE,

                            Appellant                         No. 2670 EDA 2015


                 Appeal from the PCRA Order of August 7, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009338-2009


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                     FILED MARCH 01, 2016

       Appellant, Simeon Spence, appeals from the order entered on August

7, 2015, dismissing his second petition filed pursuant to the Post Conviction

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

       On   January     27,    2011,    a      jury   convicted   Appellant   of   corrupt

organizations, conspiracy to commit corrupt organizations, two counts of

possession with intent to deliver (PWID), criminal conspiracy to violate the

Controlled Substance, Drug, Device and Cosmetic Act, criminal attempt to

commit PWID, two counts of possession, and three counts of criminal use of

communications facility.1        Thereafter, on April 19, 2011, the PCRA court
____________________________________________


1
  18 Pa.C.S.A. §§ 911(b)(2), 911(b)(4), 35 P.S. § 780-113(a)(30), 18
Pa.C.S.A. § 903 & 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 901 & 35 P.S.
§ 780-113(a)(30), 35 Pa.C.S.A. § 780-113(a)(16), and 18 Pa.C.S.A. § 7512.




*Retired Senior Judge assigned to the Superior Court.
J-S12017-16



sentenced     Appellant   to   an   aggregate   term   of   eight   to   19   years’

imprisonment.      Appellant’s sentence included two mandatory minimum

terms of incarceration based upon drug quantities.

      The pertinent facts and procedural history have been summarized as

follows:

           [Appellant’s] convictions arose from his involvement in a
           cocaine trafficking ring in Norristown, Pennsylvania, which
           was headed by Dontay Brewer, and which stored a large
           quantity of drugs at Craig Cole’s house. [Appellant] was
           characterized as a street-level drug dealer. [Appellant]
           appealed his judgment of sentence, which was affirmed on
           May 24, 2012, and his petition for allowance of appeal was
           denied on January 10, 2013.            Commonwealth v.
           Spence, 50 A.3d 250 (Pa. Super. 2012) (unpublished
           memorandum), appeal denied, 62 A.3d 379 (Pa. 2013).

           On April 10, 2013, [Appellant] filed a pro se PCRA petition,
           raising multiple issues relating to the sufficiency of the
           evidence, trial court error regarding jury instructions, and
           the denial of effective assistance of counsel.       [C]ourt
           appointed counsel [] subsequently filed a petition to
           withdraw, [including] therein a no-merit letter under
           Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
           and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
           1988) (en banc). . . . The no-merit letter, dated August
           16, 2013, detailed why the issues in [Appellant’s] pro se
           petition were entirely without merit.      The PCRA court
           granted counsel’s motion to withdraw and entered a
           Pa.R.Crim.P. 907 notice of intent to dismiss the petition
           without a hearing on August 22, 2013.

           [Appellant] then filed a pro se response on August 28,
           2013, alleging that PCRA counsel never contacted him to
           discuss the claims made in the petition and never provided
           him with a copy of the “no-merit” letter and motion to
           withdraw.     On September 3, 2013, the PCRA court
           dismissed [Appellant’s] petition[.]




                                       -2-
J-S12017-16



Commonwealth v. Spence, 121 A.3d 1138 (Pa. Super. 2015) (unpublished

memorandum) at 1-3.

        Appellant filed a timely pro se appeal from the order denying his first

PCRA petition.     On March 16, 2014, Appellant filed an “Application to

Remand Pursuant to Pa.R.A.P. 123,” requesting that we remand the matter

based upon an exculpatory sworn statement made by his co-defendant,

Dontay Brewer. This Court affirmed the order denying post-conviction relief

on April 22, 2015.     Because a panel of this Court found that Appellant’s

PCRA petition was denied properly by the PCRA court, we denied “his

request to remand the matter without prejudice to raise this issue in a PCRA

petition should he choose.”         Spence, 121 A.3d 1138 (unpublished

memorandum) at 14-15, citing Commonwealth v. Lark, 746 A.2d 585,

588 (Pa. 2000).

        Appellant filed the counseled PCRA petition at issue on June 19, 2015.

Within this petition, Appellant not only raised his claim of the “newly

discovered” Brewer affidavit, but also asserted that Alleyne v. U.S., 113

S.Ct. 2151 (2013) adopted a new constitutional right that rendered his

mandatory minimum sentences illegal. On June 24, 2015, the PCRA court

issued a Pa.R.A.P. 907 notice of its intent to dismiss Appellant’s second

petition without a hearing because it was untimely filed and because

Appellant failed to prove any exception to the PCRA’s time bar. This appeal

followed. Both Appellant and the PCRA Court have complied with Pa.R.A.P.

1925.

                                      -3-
J-S12017-16



      Appellant raises the following issues:

         I.    Did    the    [PCRA]   court    violate Appellant’s
               constitutional rights under the Fifth, Sixth and
               Fourteenth Amendments by dismissing Appellant’s
               new evidence petition as untimely        and not
               conducting a hearing on its’ merits?

         II.   Did    the    [PCRA]     court   violate  Appellant’s
               constitutional right to due process of law by finding
               that his claim premised upon a newly recognized
               right set forth in Alleyne v. U.S., 133 S.Ct 2151
               (2013) was not applicable to him because he was on
               collateral appeal when it was decided?

Appellant’s Brief at 4.

      Our scope and standard of review is well-settled:

        In PCRA appeals, our scope of review is limited to the
        findings of the PCRA court and the evidence on the record of
        the PCRA court's hearing, viewed in the light most favorable
        to the prevailing party. Because most PCRA appeals involve
        questions of fact and law, we employ a mixed standard of
        review. We defer to the PCRA court's factual findings and
        credibility determinations supported by the record. In
        contrast, we review the PCRA court's legal conclusions de
        novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      In order to address Appellant’s issues, we must first determine

whether the PCRA court correctly determined that Appellant’s second PCRA

petition was untimely filed.   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



                                     -4-
J-S12017-16


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).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). 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.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

____________________________________________


2
    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).




                                           -5-
J-S12017-16


(Pa. 2000); 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.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).

      Appellant’s judgment of sentence became final on April 10, 2013,

when the ninety-day time period for filing a writ of certiorari with the United

States     Supreme    Court   expired.     See    42   Pa.C.S.A.   § 9545(b)(3);

U.S.Sup.Ct.R. 13. Therefore, Appellant needed to file the PCRA petition at

issue by April 10, 2014, in order for it to be timely. As Appellant filed the

instant petition on June 19, 2015, it is untimely unless he has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies.    See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).

      As this Court recently has summarized:

           The timeliness exception set forth in Section 9545(b)(1)(ii)
           requires a petitioner to demonstrate he did not know the
           facts upon which he based his petition and could not have
           learned those facts by the exercise of due diligence. Due
           diligence demands that the petitioner take reasonable
           steps to protect his own interests. A petitioner must
           explain why he could not have learned the new fact(s)
           earlier with the exercise of due diligence. This rule is
           strictly enforced. Additionally, the focus of the exception is
           focused on the newly discovered facts, not a newly
           discovered or newly willing source for previously known
           facts.

           The timeliness exception set forth at Section 9545(b)(1)(ii)
           has often mistakenly been referred to as the “after-
           discovered evidence” exception. This shorthand reference

                                         -6-
J-S12017-16


         was a misnomer, since the plain language of subsection
         (b)(1)(ii) does not require the petitioner to allege and
         prove a claim of “after discovered evidence.” Rather, as
         an initial jurisdictional threshold, Section 9545(b)(1)(ii)
         requires a petitioner to allege and prove that there were
         facts unknown to him and that he exercised due diligence
         in discovering those facts.            See 42 Pa.C.S.A.
         § 9545(b)(1)(ii). Once jurisdiction is established, a PCRA
         petitioner can present a substantive after-discovered-
         evidence claim.         See Pa.C.S.A. § 9543(a)(2)(vi)
         (explaining that to be eligible for relief under PCRA,
         petitioner must plead and prove by preponderance of the
         evidence that conviction or sentence resulted from, inter
         alia, unavailability at the time of trial of exculpatory
         evidence that has subsequently become available and
         would have changed the outcome of the trial if it had been
         introduced). In other words, the “new facts” exception at
         Subsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) the facts upon which the claim was predicated
         were unknown and 2) could not have been ascertained by
         the exercise of due diligence. If the petitioner alleges
         and proves these two components, then the PCRA court
         has jurisdiction over the claim under this subsection.

         Thus the “new facts” exception at Section 9545(b)(1)(ii)
         does not require any merits analysis of an underlying
         after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)

(internal quotation marks, citations and footnote omitted).

      Initially, we note that, because Appellant filed his second PCRA petition

within 60 days of this Court’s affirming the denial of his first PCRA petition,

he has met the requirement set forth in 42 Pa.C.S.A. § 9545(b)(2).        See

Lark, supra. Thus, we consider whether Mr. Brewer’s affidavit satisfies the

prerequisites of Section 9545(b)(1)(ii).    According to Mr. Brewer’s initial

affidavit:

                                     -7-
J-S12017-16


          [Appellant] never purchased or brought [sic] any illegal
          and/or controlled substance from me at no point in time.

          I am willing and available to testify to the above admission
          and that me and [Appellant] were only friends who
          occasionally hung out from time to time after hours.

Affidavit of Admission, 1/28/14, at 1.3

       The PCRA court found that Mr. Brewer’s affidavits did not establish the

PCRA’s time bar exception found at Section 9545(b)(1)(ii):

          Based upon [these affidavits], th[e PCRA c]ourt concluded
          that Appellant failed to establish that the allegedly [new
          facts] constituted [information] that was not available
          previously. Brewer maintains that Appellant and he had a
          relationship of sorts, [] which did not include the buying or
          selling of illegal drugs. In addition, Brewer admits that
          they used the jargon “48th Street” that wiretap
          investigation picked up on, but that it did not mean what
          the Commonwealth’s expert testified to, namely a
          particular weight of drugs, but rather to an after-hours
          bar.      Because Appellant was present for their
          communication where 48th Street was used, he presumably
          was aware at the time of trial that it did not refer to drugs,
          but rather to an after-hours bar. Also at the time of trial,
          Appellant would have also known the nature of his
          relationship with Brewer, i.e., that it allegedly did not
          involve the buying or selling of drugs.          Accordingly,
          Appellant knew all of the facts that he now alleges
          [establish jurisdiction under 42 Pa.C.S.A. § 9545(b)(1)(ii)].
          The Brewer affidavits are only new in that they represent a

____________________________________________


3
  In his supplemental affidavit, Mr. Brewer further explained his relationship
with Appellant and stated that the term “48th Street” as viewed in
intercepted texts actually referred to the location of an after-hours club. Mr.
Brewer also averred that he wrote to Appellant regarding this information on
several occasions prior to his 2014 affidavit, but that Appellant never
received them. See Affidavit, 7/9/15, at 1-3.




                                           -8-
J-S12017-16


          new willing source for previously known facts, which does
          not qualify[.]

PCRA Court Opinion, 10/2/15, at 9. Our review of the record and pertinent

case    law    supports     the    PCRA        court’s   conclusion   that   Appellant’s

“newly-discovered” facts claim fails because, at best, Mr. Brewer is “a newly

discovered or newly willing source for previously known facts.” 4               Brown,

111 A.3d at 176.          For these reasons, Appellant’s efforts to establish

jurisdiction based upon Mr. Brewer’s affidavit fail.

       Appellant next argues that “he should be found to be entitled to

retroactive application of Alleyne v. U.S., 133 S.Ct. 2151 (2013), in that he

was on collateral appeal at the time that it was issued and he would

otherwise be entitled to relief.” Appellant’s Brief at 8. We cannot agree.

       In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this

Court held that the PCRA court lacked jurisdiction to consider an Alleyne

argument presented in a second PCRA petition filed five years after the

petitioner’s judgment of sentence became final, reasoning:
____________________________________________


4
   The record developed at Appellant’s trial confirms our conclusion that
Appellant was previously aware of the information contained in Mr. Brewer’s
affidavit.   When arguing a motion to sever Appellant’s case from Mr.
Brewer’s criminal trial, defense counsel asserted that Appellant was “only a
minor player” in the drug trafficking operation and that he believed that by
severing the trial, “a jury would be better able to focus on the evidence
directly related to Appellant only.” See Trial Court Opinion, 7/15/11, at 6.
Thus, Appellant’s claim that he was unaware of his own involvement in the
illegal operation lacks merit.       As such, Appellant’s reliance upon
Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2014) (en banc) as
grounds to support his entitlement to an evidentiary hearing is inapposite.



                                           -9-
J-S12017-16


        Subsection (iii) of Section 9545[(b)(1)] has two
        requirements. First, it provides that 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 provided in this section.
        Second, it provides that the right “has been held” by “that
        court” to apply retroactively. Thus, a petitioner must
        prove that there is a “new” constitutional right and that the
        right “has been held” by that court to apply retroactively.
        The language “has been held” is in the past tense. These
        words mean that the action has already occurred, i.e.,
        “that court” has already held the new constitutional right
        to be retroactive to cases on collateral review.           By
        employing the past tense in writing this provision, the
        legislature clearly intended that the right was already
        recognized at the time the petition was filed.

                                   ***

        Even assuming that Alleyne did announce a new
        constitutional right, neither our Supreme Court, nor the
        United States Supreme Court has held that Alleyne is to
        be applied retroactively to cases in which the judgment of
        sentence had become final.

        This is fatal to Appellant’s argument regarding the PCRA
        time-bar. 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.         Therefore,
        Appellant has failed to satisfy the new constitutional right
        exception to the time-bar.

Miller, 102 A.3d at 994-995. (citations omitted).

     Like the petitioner in Miller, Appellant raised his Alleyne claim more

than two years after his judgment of sentence became final. Moreover, as

stated above in Miller, neither our Supreme Court nor the United States

Supreme Court has held that the constitutional right recognized in Alleyne

applies retroactively. See also Commonwealth v. Riggle, 119 A.3d 1058,

                                   - 10 -
J-S12017-16



1067 (Pa. Super. 2015) (holding that, “Alleyne is not entitled to retroactive

effect in [the] PCRA setting.”) Finally, we conclude that Lark, supra, has

no impact on Appellant’s eligibility to benefit from Alleyne because Alleyne

was issued approximately two months after Appellant’s judgment of

sentence became final.        Thus, although Alleyne implicates the legality of

Appellant’s sentence, the PCRA court correctly concluded that it lacked

jurisdiction to address this issue. See Miller, supra.5

       In sum, the PCRA court correctly concluded that Appellant failed to

establish any exception to the PCRA’s time-bar. The PCRA court therefore

properly dismissed Appellant’s second PCRA petition as untimely filed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016



____________________________________________


5
 Appellant’s reliance upon our decision in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc), as well as our unpublished
memorandum in Commonwealth v. Dennis, 106 A.3d 178 (Pa. Super.
2014), is inapposite because both cases involved direct appeals rather than
post-conviction challenges to judgments of sentence that had already
become final.



                                          - 11 -
