J-S29013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSEPH LEE PHILLIPS,

                            Appellant                 No. 1065 WDA 2015


              Appeal from the PCRA Order Entered June 24, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002512-2002


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 08, 2016

        Appellant, Joseph Lee Phillips, appeals pro se from the post-conviction

court’s June 24, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The sole issue

presented for our review is whether Appellant is entitled to relief to correct

his illegal sentence. After careful review, we are compelled to affirm.

        On May 5, 2003, a jury convicted Appellant of attempted homicide,

two counts of aggravated assault, and carrying a firearm without a license,

based on the following facts adduced at trial:

        On October 28, 2001, at approximately 4:00 a.m., Appellant and
        his girlfriend, Tamika Walker, were leaving the after-hours club
        “Lolo Club” located in the Strip District of Pittsburgh. After they
        exited the club, they were approached by the victim Mark Fisher,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S29013-16


       who began arguing with Walker.            Appellant and Walker
       proceeded in the direction of Appellant’s vehicle, and despite
       pleas from Fisher’s friends, including Lucille Szernics and
       Shawna Jenkins, that he leave Appellant and Walker alone,
       Fisher followed Appellant and Walker to their vehicle. Upon
       reaching the vehicle, Appellant retrieved a gun from the driver’s
       side of the vehicle, then walked around to the passenger side
       where Fisher was standing. Appellant struck Fisher twice on the
       head with the butt of the gun. As Fisher lay on the ground, he
       was shot six times in the chest, hip, and right leg, his injuries
       requiring amputation of his right leg. Appellant then fled the
       scene, but later was apprehended and charged with the
       aforementioned offenses.

Commonwealth           v.    Phillips,    No.    1571   WDA     2003,   unpublished

memorandum at 1-2 (Pa. Super. filed July 20, 2004).

        On July 11, 2003, the trial court sentenced Appellant to 17½-35

years’ incarceration for attempted homicide.            Appellant did not file post-

sentence motions, but he did file a timely appeal from his judgment of

sentence.      This Court affirmed, and our Supreme Court denied his

subsequent petition for allowance of appeal.              See Commonwealth v.

Phillips, 859 A.2d 834 (Pa. Super. 2003) (unpublished memorandum),

appeal denied, 864 A.2d 529 (Pa. 2004).

       Appellant filed a pro se PCRA petition on October 6, 2005.           Counsel

was appointed and filed an amended petition on Appellant’s behalf.

Following a PCRA hearing addressing newly discovered evidence,1 Appellant
____________________________________________


1
  The victim ostensibly recanted his trial testimony. At trial, the victim
testified that he did not remember anything about his altercation with
Appellant on October 28, 2001.          Evidence of the shooting itself was
established by other eyewitnesses. At the PCRA hearing, however, the
victim testified that he had lied at trial. His recantation testimony was that
(Footnote Continued Next Page)


                                           -2-
J-S29013-16



filed another amended PCRA petition. Subsequently, on March 27, 2007, the

PCRA court entered an order vacating Appellant’s judgment of sentence and

granting him a new trial.

      The Commonwealth successfully appealed that decision.             This Court

reversed the PCRA court’s order on February 8, 2008, thereby reinstating

Appellant’s judgment of sentence; thereafter, our Supreme Court denied

Appellant’s petition for allowance of appeal.            See Commonwealth v.

Phillips, 951 A.2d 1215 (Pa. Super. 2008) (unpublished memorandum),

appeal denied, 956 A.2d 434 (Pa. 2008).

      Appellant filed another pro se PCRA petition, his second, on January

12, 2012.     Counsel was appointed, but she filed a no merit letter and

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

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

1988).    On May 30, 2012, the PCRA court granted counsel’s petition to

withdraw, and issued a notice of its intent to dismiss Appellant’s petition

pursuant to Pa.R.Crim.P. 907.            Appellant filed a timely, pro se objection

thereto, but the PCRA court ultimately denied the petition on June 18, 2012.

This Court affirmed that decision on April 1, 2013, following Appellant’s pro

se appeal.     See Commonwealth v. Phillips, 68 A.3d 366 (Pa. Super.

2013) (unpublished memorandum) (dismissing Appellant’s pro se appeal,

                       _______________________
(Footnote Continued)

Appellant may have accidentally shot him (at least six times) during a
scuffle.



                                            -3-
J-S29013-16



without reaching the merits thereof, due to Appellant’s failure to conform to

the Rules of Appellate Procedure).

       On April 24, 2015, Appellant filed a pro se PCRA petition, his third,

which is the subject of the instant appeal. On May 26, 2015, the PCRA court

issued notice of its intent to dismiss the petition without a hearing pursuant

to Rule 907. Appellant timely filed objections thereto, but the PCRA court

ultimately dismissed the petition on June 24, 2015. Appellant filed a timely

appeal, and a Pa.R.A.P. 1925(b) statement.2      On November 12, 2015, the

PCRA court filed a statement in lieu of a Rule 1925(a) opinion, indicating

that Rule 1925(a) was satisfied by the reasoning set forth in its Rule 907

notice.

       Appellant now presents the following questions for our review, listed

verbatim:3

          I.   WAS PETITIONER UNCONSTITUTIONALLY DENEID BY A
               STATE  COURT,  THE  RETROACTIVE   RELEIF  AND
____________________________________________


2
 The PCRA court does not appear to have ordered Appellant to file a Rule
1925(b) statement.
3
  Appellant refers to the following cases: Alleyne v. United States, 133
S.Ct. 2151 (2013); Greer v. United States, 134 S.Ct. 1875 (2014)
(granting certiorari, vacating judgment of sentence, and remanding to the
Third Circuit Court of Appeals in light of Alleyne); Johnson v. United
States, 134 S.Ct. 1538 (2014) (same); Shavers v. United States, 133
S.Ct. 2877 (2013) (same); United States v. Booker, 543 U.S. 220 (2005)
(applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to invalidate a
mandatory federal sentencing guideline); Marbury v. Madison, 5 U.S. 137
(1803); Testa v. Katt, 330 U.S. 386 (1947); Harper v. Virginia Dep't of
Taxation, 509 U.S. 86 (1993).



                                           -4-
J-S29013-16


             APPLICATION OF U.S. SUPREME COURT DECISIONS,
             "UNITED STATES v. ALLEYNE, GREER, JOHNSON,
             SHAVERS, BOOKER; DENIED THE APPLICATION OF
             MARBURY v. MADISON, TESTA v. KATT; THE HARPER
             RULE PURSUANT TO ARTICLE VI. CLAUSE 2. "THE
             SUPREMACY CLAUSE," NUNC PRO TUNC?

      II.    WHETHER THE STATE COURT BY ITS REFUSAL TO APPLY
             THE   DECISIONS  ALLEYNE-APPRENDI,    VIA   THE
             SUPREMACY CLAUSE TO THE APPELLANT'S CASE NUNC
             PRO TUNC, WAS TANTAMOUNT TO A STATE COURT
             COMMITTING    A UNCONSTITUTIONAL    STRUCTURAL
             DEFECT?

     III.    WHETHER APPELLANT'S SENTENCE IS ILLEGAL?

Appellant’s Brief, at 3 (bold and italics added).

      Our standard and scope of review regarding the denial of a PCRA

petition is well settled.   We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      In order to be considered timely,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The

                                      -5-
J-S29013-16


      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:

       (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, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s PCRA petition was patently untimely.            As the

Commonwealth correctly notes:

      The PCRA petition at issue, [A]ppellant’s third, is facially
      untimely. Appellant was sentenced on July 11, 2003. Following
      this Court affirming [A]ppellant’s convictions and sentences, the
      Supreme Court of Pennsylvania denied [A]ppellant’s Petition for
      Allowance of Appeal on February 10, 2005.              Appellant’s
      judgments of sentence became final on May 11, 2005, the date
      on which time expired for him to seek review in the Supreme
      Court of the United States. See [] 42 Pa.C.S. § 9545(b)(3);

                                     -6-
J-S29013-16


      U.S.Sup.Ct.R. 13(1) (“[A] petition for a writ of certiorari to
      review judgment in any case is timely when it is filed within 90
      days after entry of judgment.). Appellant then had one year
      from that date to seek review by the Supreme Court of the
      United States in order to file a PCRA petition, February 10, 2005.
      Appellant filed his instant, third PCRA petition on April 29, 2015
      – over ten years after his judgment[] of sentence became final.
      Appellant’s[] third PCRA petition was thus untimely[.]

Commonwealth’s Brief, at 9-10 (citations to the trial court’s docket omitted).

      Nevertheless,   Appellant   believes   he    is   entitled    to     retroactive

application of Alleyne, in satisfaction of the exception to the PCRA

timeliness   requirement,    42   Pa.C.S.    §    9545(b)(1)(iii)        (retroactivity

exception). In Alleyne, the Supreme Court of the United States held that

any fact that increases mandatory minimum sentence for a crime must be

submitted to a jury and proven beyond a reasonable doubt. Alleyne was

the logical extension of the Apprendi decision, wherein the high Court had

required the same with respect to facts that increased the statutory

maximum penalty for an offense. Thus, Alleyne overruled prior decisions

rejecting Apprendi’s application to mandatory minimum sentences, such as

Harris v. United States, 536 U.S. 545 (2002).

      However, this Court has already rejected attempts to use Alleyne to

satisfy the retroactivity exception to the PCRA’s jurisdictional time-bar:

             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 [the a]ppellant'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


                                     -7-
J-S29013-16


     Supreme Court specifically holds it to be retroactively applicable
     to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320
     (Pa. Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059
     (2012), citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478,
     150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
     Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
     purposes of subsection (iii), the language ‘has been held by that
     court to apply retroactively’ means the court announcing the rule
     must have also ruled on the retroactivity of the new
     constitutional right, before the petitioner can assert retroactive
     application of the right in a PCRA petition[]”), appeal denied, 597
     Pa. 715, 951 A.2d 1163 (2008). …

           We are aware that an issue pertaining to Alleyne goes to
     the legality of the sentence. See Commonwealth v. Newman,
     99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a
     challenge to a sentence premised upon Alleyne likewise
     implicates the legality of the sentence and cannot be waived on
     appeal[ ]”). It is generally true that “this Court is endowed with
     the ability to consider an issue of illegality of sentence sua
     sponte.” Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
     (Pa. Super. 2014) (citation omitted). However, in order for this
     Court to review a legality of sentence claim, there must be a
     basis for our jurisdiction to engage in such review.          See
     Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
     Super. 2011) (stating, “[a] challenge to the legality of a
     sentence ... may be entertained as long as the reviewing court
     has jurisdiction[ ]”) (citation omitted). As this Court recently
     noted, “[t]hough not technically waivable, a legality [of
     sentence] claim may nevertheless be lost should it be raised ...
     in an untimely PCRA petition for which no time-bar exception
     applies, thus depriving the court of jurisdiction over the claim.”
     [Commonwealth v.] Seskey, [86 A.3d 237,] 242 [(Pa. Super.
     2014)].

Commonwealth v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014)

(footnote omitted).

     To the extent that Appellant’s arguments can be construed as an

attempt to challenge our holding in Miller regarding Alleyne’s applicability

to the retroactivity exception, we are constrained to dismiss his claim, as


                                    -8-
J-S29013-16



this panel is not empowered to overrule the decision of another panel of the

Superior Court.4      See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa.

Super. 2013).      As the PCRA court relied on Miller to dismiss Appellant’s

current PCRA petition as untimely, we deem that decision to be supported by

the record and free from legal error. Spotz, supra.

       Order affirmed.




____________________________________________


4
  We note that Appellant’s reliance on the Supremacy Clause is unavailing.
Should the Supreme Court of the United States ever expressly determine
that Alleyne is to be afforded full retroactivity, the courts of Pennsylvania
will be bound by that decision. Moreover, Appellant’s reliance on the
“Harper Rule” does not entitle him to relief, either. In Harper, the
Supreme Court of the United States held that:

       When this Court applies a rule of federal law to the parties
       before it, that rule is the controlling interpretation of federal law
       and must be given full retroactive effect in all cases still open on
       direct review and as to all events, regardless of whether such
       events predate or postdate our announcement of the rule.

Harper, 509 U.S. at 97 (emphasis added). Here, Appellant’s case is no
longer “open on direct review.” Id. Direct review of Appellant’s sentence
terminated when the time period for filing a writ of certiorari expired at the
end of his direct appeal. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13(1).



                                           -9-
J-S29013-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2016




                          - 10 -
