J-S12017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SIMEON SPENCE,
Appellant No. 2670 EDA 2015
Appeal from the PCRA Order of August 7, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009338-2009
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 01, 2016
Appellant, Simeon Spence, appeals from the order entered on August
7, 2015, dismissing his second petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On January 27, 2011, a jury convicted Appellant of corrupt
organizations, conspiracy to commit corrupt organizations, two counts of
possession with intent to deliver (PWID), criminal conspiracy to violate the
Controlled Substance, Drug, Device and Cosmetic Act, criminal attempt to
commit PWID, two counts of possession, and three counts of criminal use of
communications facility.1 Thereafter, on April 19, 2011, the PCRA court
____________________________________________
1
18 Pa.C.S.A. §§ 911(b)(2), 911(b)(4), 35 P.S. § 780-113(a)(30), 18
Pa.C.S.A. § 903 & 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 901 & 35 P.S.
§ 780-113(a)(30), 35 Pa.C.S.A. § 780-113(a)(16), and 18 Pa.C.S.A. § 7512.
*Retired Senior Judge assigned to the Superior Court.
J-S12017-16
sentenced Appellant to an aggregate term of eight to 19 years’
imprisonment. Appellant’s sentence included two mandatory minimum
terms of incarceration based upon drug quantities.
The pertinent facts and procedural history have been summarized as
follows:
[Appellant’s] convictions arose from his involvement in a
cocaine trafficking ring in Norristown, Pennsylvania, which
was headed by Dontay Brewer, and which stored a large
quantity of drugs at Craig Cole’s house. [Appellant] was
characterized as a street-level drug dealer. [Appellant]
appealed his judgment of sentence, which was affirmed on
May 24, 2012, and his petition for allowance of appeal was
denied on January 10, 2013. Commonwealth v.
Spence, 50 A.3d 250 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 62 A.3d 379 (Pa. 2013).
On April 10, 2013, [Appellant] filed a pro se PCRA petition,
raising multiple issues relating to the sufficiency of the
evidence, trial court error regarding jury instructions, and
the denial of effective assistance of counsel. [C]ourt
appointed counsel [] subsequently filed a petition to
withdraw, [including] therein a no-merit letter under
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). . . . The no-merit letter, dated August
16, 2013, detailed why the issues in [Appellant’s] pro se
petition were entirely without merit. The PCRA court
granted counsel’s motion to withdraw and entered a
Pa.R.Crim.P. 907 notice of intent to dismiss the petition
without a hearing on August 22, 2013.
[Appellant] then filed a pro se response on August 28,
2013, alleging that PCRA counsel never contacted him to
discuss the claims made in the petition and never provided
him with a copy of the “no-merit” letter and motion to
withdraw. On September 3, 2013, the PCRA court
dismissed [Appellant’s] petition[.]
-2-
J-S12017-16
Commonwealth v. Spence, 121 A.3d 1138 (Pa. Super. 2015) (unpublished
memorandum) at 1-3.
Appellant filed a timely pro se appeal from the order denying his first
PCRA petition. On March 16, 2014, Appellant filed an “Application to
Remand Pursuant to Pa.R.A.P. 123,” requesting that we remand the matter
based upon an exculpatory sworn statement made by his co-defendant,
Dontay Brewer. This Court affirmed the order denying post-conviction relief
on April 22, 2015. Because a panel of this Court found that Appellant’s
PCRA petition was denied properly by the PCRA court, we denied “his
request to remand the matter without prejudice to raise this issue in a PCRA
petition should he choose.” Spence, 121 A.3d 1138 (unpublished
memorandum) at 14-15, citing Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000).
Appellant filed the counseled PCRA petition at issue on June 19, 2015.
Within this petition, Appellant not only raised his claim of the “newly
discovered” Brewer affidavit, but also asserted that Alleyne v. U.S., 113
S.Ct. 2151 (2013) adopted a new constitutional right that rendered his
mandatory minimum sentences illegal. On June 24, 2015, the PCRA court
issued a Pa.R.A.P. 907 notice of its intent to dismiss Appellant’s second
petition without a hearing because it was untimely filed and because
Appellant failed to prove any exception to the PCRA’s time bar. This appeal
followed. Both Appellant and the PCRA Court have complied with Pa.R.A.P.
1925.
-3-
J-S12017-16
Appellant raises the following issues:
I. Did the [PCRA] court violate Appellant’s
constitutional rights under the Fifth, Sixth and
Fourteenth Amendments by dismissing Appellant’s
new evidence petition as untimely and not
conducting a hearing on its’ merits?
II. Did the [PCRA] court violate Appellant’s
constitutional right to due process of law by finding
that his claim premised upon a newly recognized
right set forth in Alleyne v. U.S., 133 S.Ct 2151
(2013) was not applicable to him because he was on
collateral appeal when it was decided?
Appellant’s Brief at 4.
Our scope and standard of review is well-settled:
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).
In order to address Appellant’s issues, we must first determine
whether the PCRA court correctly determined that Appellant’s second PCRA
petition was untimely filed. This Court’s standard of review regarding an
order dismissing a petition under the PCRA is whether the determination of
the PCRA court is supported by the evidence of record and is free of legal
-4-
J-S12017-16
error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a
petition for relief under the PCRA, including a second or subsequent petition,
must be filed within one year of the date the judgment is final unless the
petition alleges, and the petitioner proves, that an exception to the time for
filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and
(iii), is met.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783
____________________________________________
2
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
-5-
J-S12017-16
(Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these
statutory exceptions must “be filed within 60 days of the date the claims
could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also
42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on April 10, 2013,
when the ninety-day time period for filing a writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Therefore, Appellant needed to file the PCRA petition at
issue by April 10, 2014, in order for it to be timely. As Appellant filed the
instant petition on June 19, 2015, it is untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999).
As this Court recently has summarized:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the
facts upon which he based his petition and could not have
learned those facts by the exercise of due diligence. Due
diligence demands that the petitioner take reasonable
steps to protect his own interests. A petitioner must
explain why he could not have learned the new fact(s)
earlier with the exercise of due diligence. This rule is
strictly enforced. Additionally, the focus of the exception is
focused on the newly discovered facts, not a newly
discovered or newly willing source for previously known
facts.
The timeliness exception set forth at Section 9545(b)(1)(ii)
has often mistakenly been referred to as the “after-
discovered evidence” exception. This shorthand reference
-6-
J-S12017-16
was a misnomer, since the plain language of subsection
(b)(1)(ii) does not require the petitioner to allege and
prove a claim of “after discovered evidence.” Rather, as
an initial jurisdictional threshold, Section 9545(b)(1)(ii)
requires a petitioner to allege and prove that there were
facts unknown to him and that he exercised due diligence
in discovering those facts. See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Once jurisdiction is established, a PCRA
petitioner can present a substantive after-discovered-
evidence claim. See Pa.C.S.A. § 9543(a)(2)(vi)
(explaining that to be eligible for relief under PCRA,
petitioner must plead and prove by preponderance of the
evidence that conviction or sentence resulted from, inter
alia, unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had been
introduced). In other words, the “new facts” exception at
Subsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) the facts upon which the claim was predicated
were unknown and 2) could not have been ascertained by
the exercise of due diligence. If the petitioner alleges
and proves these two components, then the PCRA court
has jurisdiction over the claim under this subsection.
Thus the “new facts” exception at Section 9545(b)(1)(ii)
does not require any merits analysis of an underlying
after-discovered-evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)
(internal quotation marks, citations and footnote omitted).
Initially, we note that, because Appellant filed his second PCRA petition
within 60 days of this Court’s affirming the denial of his first PCRA petition,
he has met the requirement set forth in 42 Pa.C.S.A. § 9545(b)(2). See
Lark, supra. Thus, we consider whether Mr. Brewer’s affidavit satisfies the
prerequisites of Section 9545(b)(1)(ii). According to Mr. Brewer’s initial
affidavit:
-7-
J-S12017-16
[Appellant] never purchased or brought [sic] any illegal
and/or controlled substance from me at no point in time.
I am willing and available to testify to the above admission
and that me and [Appellant] were only friends who
occasionally hung out from time to time after hours.
Affidavit of Admission, 1/28/14, at 1.3
The PCRA court found that Mr. Brewer’s affidavits did not establish the
PCRA’s time bar exception found at Section 9545(b)(1)(ii):
Based upon [these affidavits], th[e PCRA c]ourt concluded
that Appellant failed to establish that the allegedly [new
facts] constituted [information] that was not available
previously. Brewer maintains that Appellant and he had a
relationship of sorts, [] which did not include the buying or
selling of illegal drugs. In addition, Brewer admits that
they used the jargon “48th Street” that wiretap
investigation picked up on, but that it did not mean what
the Commonwealth’s expert testified to, namely a
particular weight of drugs, but rather to an after-hours
bar. Because Appellant was present for their
communication where 48th Street was used, he presumably
was aware at the time of trial that it did not refer to drugs,
but rather to an after-hours bar. Also at the time of trial,
Appellant would have also known the nature of his
relationship with Brewer, i.e., that it allegedly did not
involve the buying or selling of drugs. Accordingly,
Appellant knew all of the facts that he now alleges
[establish jurisdiction under 42 Pa.C.S.A. § 9545(b)(1)(ii)].
The Brewer affidavits are only new in that they represent a
____________________________________________
3
In his supplemental affidavit, Mr. Brewer further explained his relationship
with Appellant and stated that the term “48th Street” as viewed in
intercepted texts actually referred to the location of an after-hours club. Mr.
Brewer also averred that he wrote to Appellant regarding this information on
several occasions prior to his 2014 affidavit, but that Appellant never
received them. See Affidavit, 7/9/15, at 1-3.
-8-
J-S12017-16
new willing source for previously known facts, which does
not qualify[.]
PCRA Court Opinion, 10/2/15, at 9. Our review of the record and pertinent
case law supports the PCRA court’s conclusion that Appellant’s
“newly-discovered” facts claim fails because, at best, Mr. Brewer is “a newly
discovered or newly willing source for previously known facts.” 4 Brown,
111 A.3d at 176. For these reasons, Appellant’s efforts to establish
jurisdiction based upon Mr. Brewer’s affidavit fail.
Appellant next argues that “he should be found to be entitled to
retroactive application of Alleyne v. U.S., 133 S.Ct. 2151 (2013), in that he
was on collateral appeal at the time that it was issued and he would
otherwise be entitled to relief.” Appellant’s Brief at 8. We cannot agree.
In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this
Court held that the PCRA court lacked jurisdiction to consider an Alleyne
argument presented in a second PCRA petition filed five years after the
petitioner’s judgment of sentence became final, reasoning:
____________________________________________
4
The record developed at Appellant’s trial confirms our conclusion that
Appellant was previously aware of the information contained in Mr. Brewer’s
affidavit. When arguing a motion to sever Appellant’s case from Mr.
Brewer’s criminal trial, defense counsel asserted that Appellant was “only a
minor player” in the drug trafficking operation and that he believed that by
severing the trial, “a jury would be better able to focus on the evidence
directly related to Appellant only.” See Trial Court Opinion, 7/15/11, at 6.
Thus, Appellant’s claim that he was unaware of his own involvement in the
illegal operation lacks merit. As such, Appellant’s reliance upon
Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2014) (en banc) as
grounds to support his entitlement to an evidentiary hearing is inapposite.
-9-
J-S12017-16
Subsection (iii) of Section 9545[(b)(1)] has two
requirements. First, it provides that 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 provided in this section.
Second, it provides that the right “has been held” by “that
court” to apply retroactively. Thus, a petitioner must
prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively.
The language “has been held” is in the past tense. These
words mean that the action has already occurred, i.e.,
“that court” has already held the new constitutional right
to be retroactive to cases on collateral review. By
employing the past tense in writing this provision, the
legislature clearly intended that the right was already
recognized at the time the petition was filed.
***
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 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 994-995. (citations omitted).
Like the petitioner in Miller, Appellant raised his Alleyne claim more
than two years after his judgment of sentence became final. Moreover, as
stated above in Miller, neither our Supreme Court nor the United States
Supreme Court has held that the constitutional right recognized in Alleyne
applies retroactively. See also Commonwealth v. Riggle, 119 A.3d 1058,
- 10 -
J-S12017-16
1067 (Pa. Super. 2015) (holding that, “Alleyne is not entitled to retroactive
effect in [the] PCRA setting.”) Finally, we conclude that Lark, supra, has
no impact on Appellant’s eligibility to benefit from Alleyne because Alleyne
was issued approximately two months after Appellant’s judgment of
sentence became final. Thus, although Alleyne implicates the legality of
Appellant’s sentence, the PCRA court correctly concluded that it lacked
jurisdiction to address this issue. See Miller, supra.5
In sum, the PCRA court correctly concluded that Appellant failed to
establish any exception to the PCRA’s time-bar. The PCRA court therefore
properly dismissed Appellant’s second PCRA petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
____________________________________________
5
Appellant’s reliance upon our decision in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc), as well as our unpublished
memorandum in Commonwealth v. Dennis, 106 A.3d 178 (Pa. Super.
2014), is inapposite because both cases involved direct appeals rather than
post-conviction challenges to judgments of sentence that had already
become final.
- 11 -