J-S54042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
WILLIAM BROWN,                             :
                                           :
                  Appellant                :           No. 180 WDA 2016

              Appeal from the PCRA Order December 21, 2015
            in the Court of Common Pleas of Allegheny County,
            Criminal Division, No(s): CP-02-CR-0004266-2005;
            CP-02-CR-0013412-2003; CP-02-CR-0015665-2003

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 04, 2016

      William Brown (“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.

      On April 16, 2009, following a bench trial, the trial court found Brown

guilty of the first-degree murder of Tiffany Griffin, two counts of first-degree

murder for the deaths of her two unborn children, and the third-degree

murder of Carmen Griffin.      On May 28, 2009, the trial court sentenced

Brown to three consecutive terms of life in prison for the first-degree

murders of Tiffany Griffin and her unborn children, and a consecutive term of

20 to 40 years in prison for the third-degree murder of Carmen Griffin. This

Court affirmed Brown’s judgment of sentence, and the Pennsylvania

Supreme Court denied allowance of appeal.           See Commonwealth v.
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Brown, 31 A.3d 746 (Pa. Super. 2011) (unpublished memorandum), appeal

denied, 31 A.3d 290 (Pa. 2011).

      On July 13, 2012, Brown filed a pro se PCRA Petition. The PCRA court

denied the Petition. This Court affirmed the denial, and the Pennsylvania

Supreme Court denied allowance of appeal. See Commonwealth v.

Brown, 121 A.3d 1141 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 128 A.3d 218 (Pa. 2015).

      On October 15, 2015, Brown filed the instant PCRA Petition, his

second. The PCRA court subsequently entered a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss.    Thereafter, on December 21, 2015, the PCRA court

dismissed Brown’s PCRA Petition.         Brown then filed a timely Notice of

Appeal.

      On appeal, Brown raises the following question for our review:

      Did the lower [PCRA] court [err] when it dismissed Brown’s PCRA
      [Petition] as untimely filed where Brown satisfied subsection 42
      Pa.C.S.A. § 9545(1)(ii)[], presenting newly discovered evidence,
      submitted within (60) days of learning of this newly-discovered
      evidence, and thus, satisfying subsection 42 Pa.C.S.A. §
      9545(b)(2)[]?

Brief for Appellant at 4 (capitalization omitted).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. Further, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.


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     However, we afford no such deference to its legal conclusions.
     Where the petitioner raises questions of law, our standard of
     review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.               42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or the expiration of

time for seeking review.”     Id. § 9545(b)(3).       The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

     Here, Brown’s judgment of sentence became final on January 23,

2012, when the time to seek review with the Supreme Court of the United

States expired. See U.S.Sup.Ct.R. 13. Brown had until January 23, 2013,

to file a timely PCRA Petition.   Therefore, Brown’s 2015 Petition is facially

untimely.

     However, in the event that a petition is not filed within the one-year

time limitation, the PCRA provides three timeliness exceptions: (1) the

failure to raise the claim was the result of government interference; (2) the

facts of the new claim were unknown to the petitioner and could not have



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been discovered with due diligence; or (3) the right asserted is a

constitutional right recognized by the United States Supreme Court or the

Pennsylvania Supreme Court after the time period provided in the section

and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Any PCRA petition invoking one of these exceptions shall be filed within sixty

days of the date the claim could have been presented. Id. § 9545(b)(2).

      Here, Brown invokes the newly discovered facts exception based upon

the decisions in Alleyne v. United States, 133 S. Ct. 2151 (2013), and

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Brief for Appellant

at 16.   Brown argues that his sentence is illegal based upon Alleyne and

Hopkins. See id. at 12-14, 16-17, 19.

      In Alleyne, the Supreme Court held that any fact that increases the

sentence for a given crime must be submitted to the jury and found beyond

a reasonable doubt.    Alleyne, 133 S. Ct. at 2155.      The Supreme Court

reasoned that a Sixth Amendment violation occurs where these sentence-

determinative facts are not submitted to a jury. Id. at 2156. In Hopkins,

our Supreme Court held that under Alleyne, the mandatory minimum

sentencing scheme set forth in 18 Pa.C.S.A. § 6317 (“Drug-free school

zones”) was unconstitutional in its entirety, as certain provisions of the

statute did not adhere to the Alleyne holding, and were not severable from

the remaining portions of the statute. See Hopkins, 117 A.3d at 262.




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      Brown’s reliance upon Alleyne and Hopkins as newly-discovered facts

is without merit, as judicial decisions do not constitute newly-discovered

facts for the purposes of Section 9545(b)(1)(ii).           See Commonwealth v.

Watts, 23 A.3d 980, 986 (Pa. 2011).

      Moreover,    even      if   Brown    had    invoked      the   newly-recognized

constitutional right exception, he filed the instant PCRA Petition over sixty

days after both Alleyne and Hopkins were decided.1                   See 42 Pa.C.S.A.

§ 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.   2007)    (stating    that   “[w]ith     regard   to   a[    newly]-recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).2

      Based on the foregoing, the PCRA court properly dismissed Brown’s

PCRA Petition.

      Order affirmed.




1
 Alleyne was decided on June 17, 2013, and Hopkins was decided on June
15, 2015. Brown filed the instant Petition on October 15, 2015.
2
  We additionally note that the rule established in Alleyne does not apply
retroactively where the judgment of sentence is final. See Commonwealth
v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that neither the
United States Supreme Court nor the Pennsylvania Supreme Court has held
that Alleyne applies retroactively where the judgment of sentence has
become final); id. (stating that although Alleyne claims implicate the
legality of the sentence, courts cannot review a legality claim where the
court does not have jurisdiction). Additionally, our Supreme Court did not
hold that Hopkins applies retroactively to post-conviction petitioners such
as Brown.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2016




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