J-S18027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VINCENT MUNDY

Appellant No. 537 EDA 2016

Appeal from the PCRA Order dated January 19, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1208861-1986 

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 23, 2017

Appellant Vincent Mundy appeals pro se from the order dismissing his 

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46. We affirm.1

Recitation of the facts of Appellant’s conviction is not necessary for our 

disposition. To summarize the relevant procedural facts, Appellant was 

convicted in 1987 of third-degree murder and possessing an instrument of 

crime.2 We affirmed his judgment of sentence on July 11, 1991, and the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The order in question also denies Appellant’s request for habeas corpus

relief based on the alleged absence of a written sentencing order. Appellant 

makes no argument on appeal regarding this portion of the order, and 

therefore we do not review the issue.

2 18 Pa.C.S. §§ 2502 and 907, respectively.
J-S18027-17

- 2 -

Pennsylvania Supreme Court denied allocatur on January 14, 1992. See 

PCRA Ct. Op., 8/9/16, at 1-2.3

Appellant filed his first PCRA petition in 1992, which was denied by the 

PCRA court in 1997. PCRA Ct. Op. at 2. Following a lengthy journey through 

our courts, this Court finally affirmed the denial of relief on the merits of 

Appellant’s first PCRA petition in 2001. Id.

Appellant filed the instant PCRA petition pro se on November 25, 2014. 

PCRA Ct. Op. at 3. In it, Appellant alleged that his mandatory sentence is 

unlawful because the sentencing guidelines under which he was sentenced 

were declared void and unconstitutional in Commonwealth v. Sessoms, 

532 A.2d 775 (Pa. 1987). See PCRA Pet., 11/25/14, at 3. 

Appellant also filed a supplemental petition on July 13, 2015. In that 

petition, he classified his newfound understanding of Sessoms as a “newly 

discovered fact,” and therefore claimed that his petition falls under the 

exception to the PCRA’s filing deadlines in 42 Pa.C.S. § 9545(b)(1)(ii) 

(allowing for the filing of a PCRA petition after the normal one-year deadline 

if there is proper pleading and proof of newly discovered facts). See PCRA 

Pet., 7/13/15, at 3. Appellant also contended that a trial court has 

continuing jurisdiction to correct an illegal sentence. See PCRA Pet., 

11/25/14, at 15; PCRA Pet., 7/13/15, at 7.

____________________________________________

3 Appellant has filed a multitude of pro se motions and petitions. For clarity’s 

sake, we mention only those filings which have some bearing on the order 

under review.
J-S18027-17

- 3 -

On December 3, 2015, the PCRA court issued a notice of its intention 

to dismiss Appellant’s PCRA petition without a hearing, due to its 

untimeliness. PCRA Ct. Op. at 3.4 Appellant did not respond to the notice. On 

January 19, 2016, the PCRA court dismissed Appellant’s PCRA petition as 

untimely. Id.5

Appellant filed a timely notice of appeal, and raises the following 

issues for our review, as reproduced verbatim from his brief:

(A). Did the Lower Court commit reversible error, in the 

dismissal of Appellant’s P.C.R.A. Petition, without a hearing 

where evidence of Record, manifests Double Jeopardy 

Sentence clause, Constitutional Violation, with UnlawfulImprisonment therein?

(B). Did the Lower Court commit reversible error in the 

dismissal of Appellant’s P.C.R.A. Petition without a hearing, 

in its failure to apply the jurisdictional P.C.R.A. Statute 42 

Pa.C.S.A. § 9542, to review and correct, constitutional 

violations of claims of an Illegal-Sentence and Unlawful 

Imprisonment, existing in question?

(C). Did the Lower Court commit reversible error in the 

dismissal of Appellant’s properly filed Writ of Habeas 

Corpus in the denial, of a Habeas Corpus-hearing with 

____________________________________________

4 The PCRA court issued the notice pursuant to Pa.R.Crim.P. 1507, which has 

been renumbered as Pa.R.Crim.P. 907.

5 The PCRA court’s Pa.R.A.P. 1925(a) opinion states that the petition 

underlying the instant appeal was filed on August 6, 2014. However, the 

court’s January 19, 2016 order does not state the filing date of the PCRA 

petition under its consideration, and the court’s December 3, 2015 Rule 907 

Notice states instead that the petition it intends to dismiss was filed on 

November 25, 2014, and amended on July 13, 2015. Some confusion may 

have been caused by the fact that the PCRA court’s Rule 1925(a) opinion 

was written by a different judge than the judge who issued the order in 

question.
J-S18027-17

- 4 -

claims of an Illegal Sentence and Unlawful-detention, filed 

therein, for review for relief under the 42 Pa.C.S.A § 9542-

P.C.R.A. Jurisdiction Statute, applied for relief[?]

(D). Was Appellate Constitutional Rights to due Process 

and Equal Protection of the law violated under the 

guaranteed rights of the U.S. Constitutional Supremacy 

clause, governing State and Federal Constitutional Laws, 

Acts Statutes, Rules, and Provisions applied in the instant 

case?

Appellant’s Brief at 3 (some spacing added; quotation marks and emphasis 

omitted). Because we dispose of this appeal on the basis of the untimeliness 

of Appellant’s petition, we do not address the merits of Appellant’s 

arguments.

When we review an order dismissing a petition under the PCRA, our 

standard is “to determine whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 

192 (Pa. Super. 2013) (citations and internal quotation marks omitted).

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa. Super. 2016). We have 

explained:

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[6] unless the petition 

____________________________________________

6 According to 42 Pa.C.S. § 9545(b)(3), a judgment of sentence becomes 

final “at the conclusion of direct review, including discretionary review in the 

(Footnote Continued Next Page)
J-S18027-17

- 5 -

alleges and the petitioner proves one of the three 

exceptions to the time limitations for filing the petition set 

forth in Section 9545(b)(1) of the statute. 

Id. (footnote omitted). The three exceptions 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. § 9545(b)(1). 

Before the PCRA court, Appellant argued that his PCRA petition is 

timely in light of his discovery of an argument under the Sessoms decision, 

but he does not repeat that argument in this Court. Instead, Appellant 

claims that his PCRA petition is timely because (1) a court never relinquishes 

its jurisdiction to correct an illegal sentence (citing Commonwealth v. 

Vasquez, 744 A.2d 1280 (Pa. 2000)), (2) an unconstitutional statute is 

ineffective from its enactment (citing Glen-Gery Corp. v. Zoning Hearing 

Bd. of Dover Twp., 907 A.2d 1033 (Pa. 2006)), and (3) the legality of a 

(Footnote Continued) _______________________

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

or at the expiration of time for seeking the review.”
J-S18027-17

- 6 -

sentence is not waivable and may be raised sua sponte by an appellate court 

(citing Commonwealth v. Hopkins, 67 A.3d 817 (Pa. Super.), appeal 

denied, 78 A.3d 1090 (Pa. 2013)). See Appellant’s Brief at 5.

When a petitioner asserts that a PCRA petition is timely based on the 

issuance of a judicial decision, only the third Section 9545 timeliness 

exception applies, as “[o]ur Courts have expressly rejected the notion that 

judicial decisions can be considered newly-discovered facts which would 

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth 

v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing Commonwealth v. 

Watts, 23 A.3d 980, 986 (Pa. 2011)); see also Commonwealth v. 

Burton, No. 9 WAP 2016, 2017 WL 1149203 at *14 (Pa. Mar. 28, 2017) 

(differentiating Section 9545(b)(1)(ii), the second timeliness exception, 

which requires an assessment of the petitioner’s knowledge of and diligence 

in discovering facts, from Section 9545(b)(1)(iii), the third exception, which 

requires a petitioner to file a petition within sixty days of a decision creating 

a newly-recognized constitutional right). Therefore, a petitioner asserting the 

third exception must always file his or her petition within sixty days of the 

announcement of the judicial decision, rather than within sixty days of the 

date the petitioner became aware of that decision. See Cintora, 69 A.3d at 

763 (citing 42 Pa.C.S. § 9545(b)(2)).

Moreover, “[a]lthough legality of sentence is always subject to review 

within the PCRA, claims must still first satisfy the PCRA’s time limits or one 
J-S18027-17

- 7 -

of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 

(Pa. 1999). While a trial court retains perpetual jurisdiction “to correct 

obvious and patent mistakes in its orders, judgments, and decrees”, 

Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007), “it is the 

obviousness of the illegality, rather than the illegality itself, that triggers the 

court’s inherent power.” Id. at 66-67. “[A]n alleged error must qualify as a 

clear clerical error (or a patent and obvious mistake) in order to be 

amenable to correction.” Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. 

Super. 2011), aff’d, 80 A.3d 1219 (Pa. 2013).

As the Pennsylvania Supreme Court denied allocatur of Appellant’s 

direct appeal on January 14, 1992, Appellant’s judgment of sentence 

became final ninety days later, on April 13, 1992, when the time period 

during which Appellant could have sought review in the Supreme Court of 

the United States ended. See U.S. Sup. Ct. 13; 42 Pa.C.S. § 9545(b)(3). 

Appellant had one year from that date, until April 13, 1993, to file a PCRA 

petition. The instant PCRA petition, filed on November 25, 2014, is therefore 

facially untimely.7

____________________________________________

7

“The 1995 amendments to the [PCRA], which adopted the time-bar, also 

provide that if the judgment of sentence became final before the January 16, 

1996 effective date of the amendments, a PCRA petition will be considered 

timely if it is filed within one year of that date, or by January 16, 1997. But 

this grace period only applies to first post-conviction petitions filed as of 

right, not serial petitions.” Commonwealth v. Lesko, 15 A.3d 345, 361 

(Pa. 2011). This grace period has no bearing on the instant case, as 

Appellant filed a first timely PCRA petition in 1992 (before the amendments), 

(Footnote Continued Next Page)
J-S18027-17

- 8 -

Appellant has failed to plead and prove that any of the timeliness 

exceptions apply. Appellant’s encounter of the holding of Sessoms cannot 

be construed as a newly discovered “fact” rending Appellant’s petition timely 

under the second exception. Cintora, 69 A.3d at 763.8 Moreover, Appellant 

has abandoned this argument on appeal. Further, the sentence imposed on 

Appellant contained no patent or clerical error that would implicate the trial 

court’s jurisdiction to amend, regardless of the PCRA’s timeliness 

restrictions. Holmes, 933 A.2d at 65-67; Borrin, 12 A.3d at 473. We 

therefore hold the PCRA court did not err by holding it lacked jurisdiction to 

consider the merits of Appellant’s untimely PCRA petition, and thus we affirm 

its dismissal. Barndt, 74 A.3d at 192.

Order affirmed.

(Footnote Continued) _______________________

and did not file the instant petition until 2014 (after the tolling period 

ended).

8 And, even if this Court were to construe Appellant’s discovery of the 

Sessoms decision as a “fact” encompassed by the second timeliness 

exception, and even if we were to assume that he discovered the decision 

through the exercise of due diligence, Appellant did not file his instant 

petition within sixty days of his discovery pursuant to 42 Pa.C.S. § 

9545(b)(2). See PCRA Ct. Op. at 6 (noting that Appellant cited Sessoms in 

a motion in 2001).
J-S18027-17

- 9 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2017