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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
DOMINICK SERRATORE,                       :          No. 1870 MDA 2015
                                          :
                          Appellant       :


               Appeal from the PCRA Order, September 30, 2015,
                in the Court of Common Pleas of Luzerne County
                Criminal Division at No. CP-40-CR-0000140-1987


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 09, 2016

        Dominick Serratore appeals pro se from the September 30, 2015

order denying his second petition filed pursuant to the Post Conviction Relief

Act (“PCRA”)1 as untimely. After careful review, we affirm.

        The underlying facts of this case were set forth by a prior panel of this

court and need not be reiterated here. See Commonwealth v. Serratore,

778 A.2d 738 (Pa.Super. 2001) (unpublished memorandum at 1-2), appeal

denied, 788 A.2d 375 (Pa. 2001). On December 13, 1986, appellant was

charged with first-degree murder, kidnapping, unlawful restraint, and




* Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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two counts each of criminal conspiracy and aggravated assault.2 Following a

lengthy jury trial, appellant was found guilty on all counts on October 14,

1987.     On October 15, 1987, the trial court sentenced appellant to life

imprisonment on the first-degree murder charge following a penalty-phase

hearing. Thereafter, on December 18, 1992, appellant was sentenced to a

consecutive term of 7½ to 15 years’ imprisonment on the remaining counts.

Appellant filed a timely notice of appeal on January 11, 1993. On June 9,

1994, a panel of this court affirmed appellant’s judgment of sentence, and

our supreme court denied allowance of appeal on January 10, 1995.        See

Commonwealth v. Serratore, 648 A.2d 1237 (Pa.Super. 1994), appeal

denied, 655 A.2d 513 (Pa. 1995).

        On October 21, 1996, appellant filed a pro se PCRA petition.    From

1996 to 1998, four separate attorneys were appointed to represent appellant

in this matter. On December 23, 1998, appellant’s counsel filed an amended

PCRA petition on his behalf. Following a hearing, the PCRA court dismissed

appellant’s petition on June 5, 2000.      Appellant filed a timely notice of

appeal. On April 26, 2001, a panel of this court affirmed the PCRA court’s

June 5, 2000 order, and our supreme court denied allowance of appeal on

October 17, 2001.      See Commonwealth v. Serratore, 778 A.2d 738

(Pa.Super. 2001), appeal denied, 788 A.2d 375 (Pa. 2001).




2
    18 Pa.C.S.A. §§ 2501, 2901, 2902, 903, and 2702, respectively.


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        On December 4, 2014, appellant filed the instant pro se PCRA

petition, his second, alleging that his sentence of life imprisonment violated

the Supreme Court’s mandate in Alleyne v. United States,              U.S.   ,

133 S. Ct. 2151 (2013).3 On February 11, 2015, the PCRA court provided

appellant with notice, pursuant to Pa.R.Crim.P. 907(1), of its intention to

dismiss his petition without a hearing. Thereafter, on September 30, 2015,

the PCRA court dismissed appellant’s petition without a hearing. This timely

appeal followed.4

        The crux of appellant’s argument on appeal is that the PCRA court

erred in denying his petition as untimely because his sentence of life

imprisonment violated Alleyne and that this case should be applied

retroactively. (Appellant’s brief at 4.)

        Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.



3
  In Alleyne, the Supreme Court held that the Sixth Amendment requires
that “[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 133 S.Ct. at 2155 (citation omitted).
4
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.


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2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”       Commonwealth v. Alderman,

811 A.2d 592, 594 (Pa.Super. 2002), appeal denied, 825 A.2d 1259 (Pa.

2003) (citation omitted). In order to be eligible for PCRA relief, a defendant

must plead and prove by a preponderance of the evidence that his conviction

or sentence arose from one or more of the errors listed in 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3). Lastly, we note that, “[a]lthough this

Court is willing to liberally construe materials filed by a pro se litigant,

pro se      status   confers   no   special   benefit   upon   the   appellant[.]”

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (citation

omitted).

      Before we address the merits of appellant’s arguments, we must first

consider the timeliness of appellant’s PCRA petition because it implicates the

jurisdiction of this court and the PCRA court. Commonwealth v. Davis, 86

A.3d 883, 887 (Pa.Super. 2014) (citation omitted).

              To be timely, a PCRA petition must be filed within
              one year of the date that the petitioner’s judgment
              of sentence became final, unless the petition alleges
              and the petitioner proves one or more of the
              following statutory exceptions:

              (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


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                   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).

                  We emphasize that it is the petitioner who
           bears the burden to allege and prove that one of the
           timeliness exceptions applies. In addition, a petition
           invoking any of the timeliness exceptions must be
           filed within 60 days of the date the claim first could
           have been presented. 42 Pa.C.S.[A.] § 9545(b)(2).

Commonwealth v. Marshall, 947 A.2d 714, 719-720 (Pa. 2008) (some

citations omitted).    “[A]n untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing the petition, set forth at [42 Pa.C.S.A.

§ 9545] are met.” Lawson, 90 A.3d at 5 (footnote omitted).

     Instantly, it is undisputed that appellant’s PCRA petition, filed on

December 4, 2014, is patently untimely.        See 42 Pa.C.S.A. § 9545(b)(3)

(providing “a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and


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the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review[]”).    As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time bar, as set forth in Section 9545(b)(1).

      Appellant avers that the Supreme Court’s decision in Alleyne

constitutes a newly-discovered fact that would invoke the protections

afforded by Section 9545(b)(1)(ii).       (Appellant’s brief at 6-9.)      Appellant

further posits that Alleyne announced a new constitutional right under

Section 9545(b)(1)(iii) that applies retroactively.      (Id. at 8, 16-17.)        We

disagree.

      Contrary to appellant’s contention, this court has expressly rejected

the notion that judicial decisions constitute newly-discovered facts that

invoke    the    protections   afforded   by   Section    9545(b)(1)(ii).          See

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (holding

that a judicial determination does not qualify as a previously unknown “fact”

capable     of    triggering   the    timeliness     exception    set      forth     in

Section 9545(b)(1)(ii)    of   the   PCRA).        Furthermore,   courts     in    this

Commonwealth have recognized that Alleyne does not apply retroactively to

cases on collateral review. See Commonwealth v. Washington, 2016 WL

3909088, *3 (Pa. 2016) (holding that the Alleyne decision does not apply

retroactively to collateral attacks upon mandatory minimum sentences

advanced in PCRA proceedings); see also Commonwealth v. Riggle, 119



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A.3d 1058, 1064 (Pa.Super. 2015) (stating that, “while this Court has held

that Alleyne applies retroactively on direct appeal, we have declined to

construe that decision as applying retroactively to cases during PCRA

review”).

      Additionally, even if appellant’s claim met the underlying requirements

of Section 9545(b)(1), he still would not be entitled to any relief. Appellant

has failed to demonstrate that he brought his exceptions to the PCRA

time-bar within 60 days of the date the claim could have been presented, as

required by Section 9545(b)(2). To fulfill the 60-day requirement, appellant

needed to file his petition within 60 days from the date Alleyne was

decided.    See Brandon, 51 A.3d at 235 (concluding that, “the sixty-day

period begins to run upon the date of the underlying judicial decision[,]” not

the date appellant became aware of the decision).       The Supreme Court’s

decision in Alleyne was filed on June 17, 2013.      Appellant filed his PCRA

petition almost six months later on December 4, 2014.        Thus, appellant’s

petition is untimely on this basis as well.

      Finally, appellant’s life without parole sentence for first-degree murder

does not represent an Alleyne violation.

      Accordingly, we discern no error on the part of the PCRA court in

dismissing appellant’s PCRA petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




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