J-S62045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JIMMIE L. WALLACE

                            Appellant                No. 2274 MDA 2015


                Appeal from the PCRA Order December 14, 2015
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001076-2011;
                             CP-22-CR-0001242-2011


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 01, 2016

        Appellant, Jimmie L. Wallace, appeals pro se from the order entered in

the Dauphin County Court of Common Pleas, which denied his third petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are summarized

as follows.     On February 21, 2011, Appellant sucker-punched the victim

while the victim was sitting and watching television at the bar of S&D’s

Lounge in Harrisburg. Police were called to the scene. When they arrived,

the victim appeared to be conscious, but he was unresponsive. The victim

had suffered a head injury and was bleeding from his mouth and ear. An

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1
    42 Pa.C.S.A. §§ 9541-9546.
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ambulance transported the victim to Hershey Medical Center where a CAT

scan revealed a subdural hemorrhage and a fracture through the small bone

behind the right ear and the temporal bone. Upon release from the hospital,

the victim continued to suffer from headaches and hearing loss. Later, when

giving a statement on why he punched the victim, Appellant answered “for

no reason.”

      A jury convicted Appellant of aggravated assault on April 5, 2012, and

the court sentenced him to ten to twenty years’ incarceration on April 25,

2012. Appellant filed a pro se direct appeal. On April 9, 2013, this Court

directed the trial court to conduct a Grazier hearing, which the court held

on April 23, 2013.      The court determined that Appellant knowingly,

intelligently, and voluntarily waived his right to counsel on appeal. On July

8, 2013, this Court affirmed the judgment of sentence; the Supreme Court

denied allowance of appeal on February 20, 2014. See Commonwealth v.

Wallace, 82 A.3d 1058 (Pa.Super. 2013) (unpublished memorandum),

appeal denied, 624 Pa. 682, 86 A.3d 233 (2014).         Appellant sought no

further review.

      Instead, on March 5, 2014, Appellant pro se filed his first PCRA

petition. In his first PCRA petition, Appellant argued that the evidence was

insufficient to support his conviction for aggravated assault, as the

Commonwealth failed to prove the essential element of intent.     The PCRA

court appointed counsel on March 13, 2014, and counsel filed a no merit


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letter and petition to withdraw on April 9, 2014. Appellant pro se filed an

amended PCRA petition on May 5, 2014, which the court dismissed on May

14, 2014. This petition repeated Appellant’s claim of insufficient evidence,

arguing that there was no proof of intent and that there were conflicting

accounts of the incident. The court granted counsel’s petition to withdraw

and issued notice per Pa.R.Crim.P. 907 on October 3, 2014. On November

13, 2014, the PCRA court dismissed Appellant’s first PCRA petition.

Appellant sought no further review.

       Instead, Appellant pro se filed his second PCRA petition on December

4, 2014. In this petition, Appellant claimed prosecutorial misconduct, trial

court abuse of discretion, and imposition of an illegal sentence. On February

2, 2015, Appellant filed a supplemental PCRA petition, in which he expanded

on these claims. Appellant first argued his conviction was based on evidence

that the prosecution knew was false. Appellant then argued the court erred

when it denied his motion to dismiss for insufficient evidence.      Finally,

Appellant asserted that his mandatory sentence was illegal under Alleyne.

On March 4, 2015, the PCRA court dismissed Appellant’s second PCRA

petition.2 Appellant sought no further review.

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2
  The record indicates the PCRA court did not issue Rule 907 notice before it
dismissed Appellant’s second PCRA petition. Appellant, however, did not
challenge the lack of Rule 907 notice on an appeal, which constitutes waiver
of any rule-related claim. See Commonwealth v. Boyd, 923 A.2d 513,
514 n. 1 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).



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      Instead, on April 6, 2015, Appellant pro se filed his current, third PCRA

petition.    In this petition, Appellant again argued a claim of manufactured

evidence and, under Alleyne, he was sentenced to an illegal mandatory

minimum sentence because the elements of the offense were not proven

beyond a reasonable doubt. The court issued Rule 907 notice on November

24, 2015, and on December 4, 2015, Appellant filed a pro se response.

Ultimately, the PCRA court dismissed Appellant’s third PCRA petition as

untimely on December 15, 2015.

      On December 23, 2015, Appellant filed a timely pro se notice of appeal

and on January 7, 2016, the court ordered him to file a concise statement of

errors complained of on appeal per Pa.R.A.P. 1925(b).       Appellant filed his

Rule 1925(b) statement on January 27, 2016, raising issues of timeliness of

his third petition, fraud on the court, prosecutorial misconduct, abuse of

discretion, and illegal sentence.

      We take Appellant’s issues directly from his pro se brief:

            WHETHER THE PCRA COURT’S DETERMINATION THAT
            PETITIONER’S PCRA, FILED 4/6/2015, UPON THE COURT’S
            FINAL ORDER OF 11/13/2014, WAS UNTIMELY PURSUANT
            TO THE POST-CONVICTION RELIEF ACT, AND WHETHER
            THE [PCRA] COURT’S DETERMINATION IS FREE OF
            ERROR?

            ACCORDING TO THE PENNSYLVANIA CONSTITUTION
            ARTICLE 1 §§ 9 AND 26, [APPELLANT’S] RIGHT TO APPEAL
            SHALL    FOREVER    REMAIN    INVIOLATE,    FURTHER,
            [NEITHER] THE COMMONWEALTH NOR ANY SUBDIVISION
            THEREOF SHALL ABRIDGE [APPELLANT’S] RIGHT TO
            APPEAL HIS WRONGFUL CONVICTION, NOR HIS ILLEGAL
            SENTENCE.        SHALL     IT   NOT     BE   DEEMED

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         UNCONSTITUTIONAL, WHEREAS, THE 14TH AMENDMENT
         TO OUR UNITED STATES CONSTITUTION REQUIRES THE
         COMMONWEALTH TO PROVE EACH ELEMENT OF AN
         OFFEN[S]E CHARGED BEYOND A REASONABLE DOUBT,
         AND A [COURT] OF OUR COMMONWEALTH CONCLUDES
         AN ESSENTIAL ELEMENT OF AN OFFEN[S]E CHARGED
         SHALL NOT BE REQUIRED?

(Appellant’s Brief at 2-3).

      As a prefatory matter, we observe the timeliness of a PCRA petition is

a jurisdictional requisite.   Commonwealth v. Hackett, 598 Pa. 350, 956

A.2d 978 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d

277 (2009). A PCRA petition must be filed within one year of the date the

underlying judgment becomes final.         42 Pa.C.S.A. § 9545(b)(1).       A

judgment is deemed final at the conclusion of direct review or at the

expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove his conviction resulted from one or more of the grounds set forth in 42

Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth v. Zook, 585 Pa. 11, 887

A.2d 1218 (2005).      “Generally, an appellant may not raise allegations of

error in an appeal from the denial of PCRA relief as if he were presenting the

claims on direct appeal.”     Commonwealth v. Price, 876 A.2d 988, 995

(Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert.

denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006) (holding

petitioner’s challenge to sufficiency of evidence is not cognizable under

PCRA); Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal



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denied, 557 Pa. 624, 732 A.2d 611 (1998) (stating sufficiency of evidence

claims are not cognizable under PCRA).      Straightforward challenges to the

sufficiency and weight of the evidence are not enumerated errors listed in

the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i-viii).

      Additionally, the PCRA petitioner must plead and prove his allegation

of error has not been previously litigated or waived, and “the failure to

litigate the issue prior to or during trial or on direct appeal could not have

been the result of any rational, strategic or tactical decision by counsel.” 42

Pa.C.S.A. § 9543(a)(4); Commonwealth v. Jones, 597 Pa. 286, 291, 951

A.2d 294, 298 (2008). “A claim previously litigated in a direct appeal is not

cognizable under the PCRA.” Commonwealth v. Hutchins, 760 A.2d 50,

55 (Pa.Super. 2000). A claim is previously litigated under the PCRA if “the

highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.”         42 Pa.C.S.A. §

9544(a)(2); Commonwealth v. Daniels, 600 Pa. 1, 16, 963 A.2d 409, 419

(2009). Further, “an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state [post-conviction] proceeding.” 42 Pa.C.S.A. § 9544(b).

      Recently in Commonwealth v. Washington, ___ Pa. ___, 142 A.3d

810 (2016), the Pennsylvania Supreme Court addressed whether Alleyne v.

U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) applied

retroactively on collateral review. The Washington Court stated:


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         [A] new rule of law does not automatically render final,
         pre-existing sentences illegal.      A finding of illegality
         concerning such sentences may be premised on such a
         rule only to the degree that the new rule applies
         retrospectively. In other words, if the rule simply does not
         pertain to a particular conviction or sentence, it cannot
         operate to render that conviction or sentence illegal. …

                                  *    *    *

         [N]ew constitutional procedural rules generally pertain to
         future cases and matters that are pending on direct review
         at the time of the rule’s announcement.

Id. at 814-15. Applying the retroactivity analysis of Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Washington Court

held the Alleyne rule is not a substantive or watershed procedural rule that

would warrant retroactive application on collateral review.      Washington,

supra (holding Alleyne does not apply retroactively on collateral review to

challenge to mandatory minimum sentence as “illegal”).              Finally, an

appellate court may affirm the order of the trial court on any basis as long as

the ultimate decision is correct. Commonwealth v. Reese, 31 A.3d 708,

727 (Pa.Super. 2011) (en banc).

      Instantly, contrary to the PCRA court’s conclusion, Appellant timely

filed his third and current PCRA petition.       The Supreme Court denied

allowance of appeal on February, 20, 2014, giving Appellant 90 days, or until

May 21, 2014, to file a petition for a writ of certiorari with the United States

Supreme Court.    See 42 Pa.C.S.A. § 9545(b)(3)       Appellant’s judgment of

sentence therefore became final on May 21, 2014.          Based on that date,


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Appellant had until May 21, 2015, to file any PCRA petitions (not March 20,

2015, as the PCRA court calculated). See Hackett, supra; 42 Pa.C.S.A §

9545(b)(1). Appellant filed his first PCRA petition on March 5, 2014. After

the PCRA court dismissed this petition on November 13, 2014, Appellant

filed his second PCRA petition on December 4, 2014.        Appellant’s second

PCRA petition was dismissed on March 4, 2015. Appellant filed his current,

third PCRA petition on April 6, 2015, which the court later dismissed on

December 15, 2015, as untimely. All of Appellant’s PCRA petitions were filed

by May 21, 2015, within the one year time limit. Thus, the court erred in

dismissing Appellant’s third PCRA petition as untimely.

      Nevertheless, Appellant again challenges the         sufficiency of the

evidence and other evidentiary issues, as if on direct appeal, so Appellant’s

issues are not cognizable under the PCRA. See Price, supra; Bell, supra.

Moreover, Appellant raised similar or identical issues related to the

sufficiency of the evidence and other evidentiary matters in prior PCRA

petitions, and the various courts ruled against Appellant.          Therefore,

Appellant’s current sufficiency of the evidence challenge can be deemed

previously litigated. See Daniels, supra. Likewise, to the extent Appellant

reinterprets his prior claims, he could have raised them on direct appeal or

in his prior PCRA petitions, so they are waived. See 42 Pa.C.S.A. § 9544(b).

      Finally, Alleyne provides Appellant with no relief for two reasons.

First, Alleyne does not apply retroactively on collateral review to Appellant’s


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claim that his sentence is “illegal,” as this claim is entangled with his

sufficiency of the evidence challenge.           See Washington, supra; Zook,

supra; Price, supra. Second, Appellant received no mandatory minimum

sentence in any event.         Accordingly, we affirm, albeit on other grounds. 3

See Reese, supra.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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3
  Due to our disposition, we deny all six of Appellant’s open motions for
review, relief or remand.



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