J-S69039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CARL MUHAMMAD,

                         Appellant                   No. 788 EDA 2015


                Appeal from the PCRA Order of March 2, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0145731-1990


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 12, 2016

      Appellant, Carl Muhammad, appeals from the order entered on March

2, 2015, dismissing as untimely his second petition pursuant to the Post

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

      We briefly summarize the facts and procedural history of this case as

follows.   In August 1989, police arrested Appellant after he sold cocaine,

with the assistance of a co-defendant, to an undercover agent. In a search

incident to his arrest, police recovered two firearms, ammunition, cocaine,

marijuana, and pre-recorded currency used in the            undercover   drug

transaction.    On December 19, 1990, a jury convicted Appellant of

possession with intent to deliver a controlled substance, criminal conspiracy,

possession of an instrument of crime, and attendant firearms violations. On

September 11, 1991, the trial court sentenced Appellant to an aggregate
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term of eight to 25 years of imprisonment. On January 11, 1993, this Court

affirmed Appellant’s judgment of sentence.              See Commonwealth v.

Muhammad, 626 A.2d 647 (Pa. Super. 1993) (unpublished memorandum).

Our Supreme Court denied further review on November 10, 1993.              See

Commonwealth v. Muhammad, 634 A.2d 1115 (Pa. 1993).

        Appellant filed a pro se PCRA petition on July 30, 1996.      Appointed

counsel filed an amended petition that the PCRA court denied on October 24,

1997.    We affirmed that decision.            See Commonwealth v. Muhammad,

737 A.2d 809 (Pa. Super. 1999) (unpublished memorandum). Our Supreme

Court denied further review on July 22, 1999.            See Commonwealth v.

Muhammad, 740 A.2d 231 (Pa. 1999).

        On March 12, 2014, Appellant filed a pro se PCRA petition. He filed a

supplemental pro se PCRA petition on July 1, 2014.              The PCRA court

reviewed them together.1          On December 16, 2014, the PCRA court sent

Appellant notice of its intent to dismiss the PCRA petitions without an

evidentiary hearing pursuant to Pa.R.Crim.P. 907.         On March 2, 2015, the

PCRA court entered an order dismissing Appellant’s PCRA petitions as



____________________________________________


1
    Upon our review of the PCRA petitions presented, Appellant claimed that
his sentence was illegal because: (1) the Commonwealth did not prove the
weight of the drugs recovered, and; (2) the Department of Corrections
inaccurately    computed     his  sentences   consecutively,    rather   than
concurrently. Appellant also claimed counsel was ineffective for failing to
hire a narcotics expert to examine the drugs at issue for weight or quantity.



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untimely, because Appellant failed to plead and prove an exception to the

PCRA’s jurisdiction time-bar. This timely appeal resulted.2

       On appeal, Appellant presents the following pro se issues for our

review:

          1. Did the lower court err in finding [Appellant] did not
             assert [an] exception to timeliness per 18 Pa.C.S.A. §
             9545(b)(1)?

          2. Did the lower court err in fail[ing] to appoint counsel,
             depriving [Appellant] of a full, fair, and counseled
             opportunity to present claims, and/or hold an evidentiary
             hearing?

          3. Was appellate counsel ineffective for failing to amend
             and raise for review the unconstitutionality of [a]
             mandatory minimum sentence imposed per [the United
             States] Supreme Court’s decision in Alleyne v. U.S.,
             133 S.Ct. 2151 (2013)?

          4. Was the verdict against the weight of the evidence for
             conspiracy?

Appellant’s Brief at 1-2.

       Our standard of review is well-settled:


____________________________________________


2
   Appellant filed a pro se notice of appeal on March 12, 2015. On April 23,
2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). On
May 4, 2015, Appellant filed a pro se motion, with this Court, to supplement
his PCRA petition filed on March 12, 2014, by asserting an exception to the
PCRA’s one-year jurisdictional time bar based upon a newly recognized
constitutional right articulated by the United States Supreme Court in
Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013). By per
curiam order filed on June 1, 2015, this Court denied the motion without
prejudice for Appellant to raise the issue in his appellate brief. Appellant
presents the issue again for our review.



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        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).

      Initially, we reject Appellant’s second argument that he is entitled to

the appointment of counsel.      “[F]irst time PCRA petitioners have a rule-

based right to counsel.”     Commonwealth v. Figueroa, 29 A.3d 1177,

1180-1181 n.6 (Pa. Super. 2011), citing Pa.R.Crim.P. 904. Because this is

Appellant’s second PCRA petition, he is not entitled to court-appointed

representation.

      Appellant’s first and third issues are inter-related, so we will examine

them together.    Appellant contends that he received an illegal mandatory

minimum sentence under 18 Pa.C.S.A. § 7508 based upon Alleyne.

Appellant’s Brief at 4.     He claims that, “[u]nder Pennsylvania law, a

challenge to the validity of the sentence is a challenge to its legality” and an

illegal sentence claim “can never be waived.” Id. Appellant avers the PCRA

court erred in dismissing his PCRA petition as untimely, because Alleyne

created a new constitutional right, which is an exception to the PCRA’s one-

year timing requirement under 42 Pa.C.S.A. § 9545(b).            He claims he




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presented his claim within 60 days of the subsequent decisions issued by

Pennsylvania courts regarding application of Alleyne. Id.

      This Court previously stated:

        [I]t is black-letter law that challenges to the legality of a
        judgment of sentence cannot be waived. […] While the rule
        forecloses permanent waiver of legality-of-sentence claims,
        it does not preclude a court from enforcing procedural rules
        or jurisdictional limits and requiring such claims be properly
        presented at the time they are raised in order to obtain
        review thereof. […W]hen a petitioner files an untimely PCRA
        petition raising a legality-of-sentence claim, the claim is not
        waived, but the jurisdictional limits of the PCRA itself render
        the claim incapable of review.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (internal

citations omitted).

      We previously determined:

        Pennsylvania law makes clear that when a PCRA petition is
        untimely, neither this Court nor the trial court has
        jurisdiction over the petition. The period for filing a PCRA
        petition is not subject to the doctrine of equitable tolling;
        instead, the time for filing a PCRA petition can be extended
        only if the PCRA permits it to be extended. This is to accord
        finality to the collateral review process. However, an
        untimely petition may be reviewed 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(b)(1)(i), (ii), and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014)

(internal citations, quotations, and brackets omitted).

      The PCRA provides, in relevant part, as follows:

        § 9545. Jurisdiction and proceedings

                            *         *           *

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        (b) Time for filing petition.—

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

           (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.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

42 Pa.C.S.A. § 9545(b).

     Appellant’s judgment of sentence became final on February 8, 1994, or

90 days after our Supreme Court denied discretionary review on direct

appeal. See Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa. Super.

2009) (“Judgment 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 at the expiration of time for seeking the

review.”); see also U.S.Sup.Ct.R. 13 (“A petition for a writ of certiorari

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seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when it is filed

with the Clerk within 90 days after entry of the order denying discretionary

review.”). As such, Appellant’s PCRA petitions filed in 2015, over 20 years

after his judgment of sentence became final, are patently untimely.

       Alleyne was decided on June 17, 2013 and Appellant filed his original

PCRA petition on March 12, 2014, 272 days after Alleyne was decided.3

Therefore, Appellant has not complied with Section 9545(b)(2).

       Moreover, we held in Miller:

         [N]either 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 995. The same holds true here.

       Finally, Appellant claims, in his fourth issue above, his conviction for

conspiracy was against the weight of the evidence presented at trial.


____________________________________________


3
  We also note that Appellant did not raise the Alleyne issue in his original
PCRA petition. Instead, he raised the issue for the first time on May 4,
2015, when he filed a motion with this Court to supplement his original PCRA
petition, or 690 days after Alleyne was decided.



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J-S69039-15



untimely, because Appellant failed to plead and prove an exception to the

PCRA’s jurisdiction time-bar. This timely appeal resulted.2

       On appeal, Appellant presents the following pro se issues for our

review:

          1. Did the lower court err in finding [Appellant] did not
             assert [an] exception to timeliness per 18 Pa.C.S.A. §
             9545(b)(1)?

          2. Did the lower court err in fail[ing] to appoint counsel,
             depriving [Appellant] of a full, fair, and counseled
             opportunity to present claims, and/or hold an evidentiary
             hearing?

          3. Was appellate counsel ineffective for failing to amend
             and raise for review the unconstitutionality of [a]
             mandatory minimum sentence imposed per [the United
             States] Supreme Court’s decision in Alleyne v. U.S.,
             133 S.Ct. 2151 (2013)?

          4. Was the verdict against the weight of the evidence for
             conspiracy?

Appellant’s Brief at 1-2.

       Our standard of review is well-settled:


____________________________________________


2
   Appellant filed a pro se notice of appeal on March 12, 2015. On April 23,
2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). On
May 4, 2015, Appellant filed a pro se motion, with this Court, to supplement
his PCRA petition filed on March 12, 2014, by asserting an exception to the
PCRA’s one-year jurisdictional time bar based upon a newly recognized
constitutional right articulated by the United States Supreme Court in
Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013). By per
curiam order filed on June 1, 2015, this Court denied the motion without
prejudice for Appellant to raise the issue in his appellate brief. Appellant
presents the issue again for our review.



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