J-S46027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BENJAMIN ALEXANDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 83 EDA 2020

Appeal from the PCRA Order Entered November 1, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1019451-1990

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 29, 2021

Appellant, Benjamin Alexander, appeals pro se from the order entered 

on November 1, 2019, that denied as untimely his fourth petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. 

We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

[Appellant] was arrested and subsequently charged with 

two counts of first-degree murder, aggravated assault and 

possession of an instrument of a crime (“PIC”) in relation to the 

shooting deaths of David Cotton and Richard Mills on August 30, 

1990[,] in the city and county of Philadelphia. On July 24, 1991, 

following a jury trial presided over by the Honorable Joseph D. 

O’Keefe, [Appellant] was convicted of two counts each of firstdegree murder, aggravated assault and PIC. On October 1, 1991, 

the trial court sentenced [Appellant] to a mandatory term of life 

imprisonment without parole for the first-degree murder bills and 

concurrent terms on the remaining bills. [Appellant] filed a timely 

notice of appeal.2 Following a direct appeal, the Superior Court 
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affirmed the judgment of sentence on January 6, 1993, and 

[Appellant] failed to seek allocatur with the Pennsylvania Supreme 

Court.3

2 Following a thorough review of the case file, the 

exact date [of] the Notice of Appeal remains unclear. 

Regardless, it is undisputed that it was timely filed.

3 Commonwealth v. Alexander, 626 A.2d 642 (Pa. 

Super. 1993) (unpublished memorandum).

On January 26, 1996, [Appellant] filed his first pro se PCRA 

petition. Counsel was appointed and subsequently filed an 

Amended PCRA Petition. Ultimately, the PCRA court formally 

dismissed the petition on March 23, 1998. The Superior Court 

affirmed the PCRA court’s dismissal on June 16, 1999 and the 

Pennsylvania Supreme Court denied allocatur on December 1, 

1999.4

4 Commonwealth v. Alexander, 742 A.2d 198 (Pa. 

Super. 1999) (unpublished memorandum), appeal 

denied, 747 A.2d 896 (Pa. 1999).

On January 20, 2009, [Appellant] filed his second pro se

PCRA petition. Ultimately, the PCRA court dismissed the petition 

as untimely on March 10, 2009. [Appellant] did not file an appeal 

to [the denial of] his second PCRA petition. On April 12, 2011, 

[Appellant] filed his third pro se PCRA petition. The PCRA Court 

dismissed the petition as untimely on November 30, 2011. 

[Appellant] did not file an appeal to [the dismissal of] his third 

PCRA petition. 

On October 9, 2012, [Appellant] filed the instant pro se

PCRA petition, his fourth, stylized as a writ of habeas corpus.

[1]

 

Pursuant to Pennsylvania Rule of Criminal Procedure 907, 

[Appellant] was served notice of this Court’s intention to dismiss 

his petition on August 26, 2019. [Appellant] submitted a response 

to the Rule 907 notice on September 13, 2019. On November 1, 

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1 Appellant filed a “supplemental filing” on August 21, 2014, that was titled,

“Petition for Writ of Habeas Corpus Ad Subjiciendum.” The PCRA court also 

addressed and disposed of it in its November 1, 2019 order dismissing 

Appellant’s October 9, 2012 petition. 
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2019, the PCRA court dismissed his PCRA petition as untimely. On 

November 18, 2019, the instant notice of appeal was timely filed 

to the Superior Court.

PCRA Court Opinion, 12/20/19, at 1-2. 

Appellant’s assertion that this Court has jurisdiction because his claims 

should be treated as a writ of habeas corpus and not a PCRA petition is 

meritless. Claims that are cognizable under the PCRA must be considered 

within the context of the PCRA. As we have explained in considering whether 

habeas corpus petitions should be treated as PCRA petitions:

It is well-settled that the PCRA is intended to be the sole means 

of achieving post-conviction relief. 42 Pa.C.S. § 9542; 

Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the 

PCRA could not provide for a potential remedy, the PCRA statute 

subsumes the writ of habeas corpus. [Commonwealth v. ]Fahy, 

[737 A.2d 214,] at 223–224; Commonwealth v. Chester, 557 

Pa. 358, 733 A.2d 1242 (1999). Issues that are cognizable under 

the PCRA must be raised in a timely PCRA petition and cannot be 

raised in a habeas corpus petition. See Commonwealth v. 

Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); see also 

Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) (a 

collateral petition that raises an issue that the PCRA statute could 

remedy is to be considered a PCRA petition). Phrased differently, 

a defendant cannot escape the PCRA time-bar by titling his 

petition or motion as a writ of habeas corpus. 

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013).

In his petitions, Appellant claims that his sentence is illegal and that 

counsel was ineffective. Petition for Writ of Habeas Corpus, 10/9/12, at 1-8;

“Petition for Writ of Habeas Corpus Ad Subjiciendum,” 8/21/14, at 1-11. 

These claims are cognizable under the PCRA. 42 Pa.C.S. 

§ 9543(a)(2)(ii),(vii); Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. 
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Super. 2011); Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013). 

Accordingly, this Court and the PCRA court are constrained to review 

Appellant’s petition within the context of the PCRA.

It is well settled that the timeliness of a PCRA petition is a jurisdictional 

threshold and may not be disregarded in order to reach the merits of the 

claims raised in a PCRA petition. Commonwealth v. Lawson, 90 A.3d 1, 4 

(Pa. Super. 2014). Effective January 16, 1996, the PCRA was amended to 

require a petitioner to file any PCRA petition within one year of the date his 

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

of sentence “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.” 42 Pa.C.S. § 9545(b)(3). Where a petitioner’s judgment of sentence 

became final on or before the effective date of the amendment, January 16, 

1996, a special grace proviso allowed first PCRA petitions to be filed by 

January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-

1057 (Pa. Super. 1997) (explaining the application of the PCRA grace proviso).

However, an 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. § 9545(b)(1)(i), (ii), and 
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(iii), is met.2 A petition invoking one of these exceptions must be filed within 

sixty days3 of the date the claim could first have been presented. 42 Pa.C.S. 

§ 9545(b)(2). 

Our review of the record reflects that Appellant’s judgment of sentence 

became final on February 5, 1993, thirty days after this Court affirmed 

Appellant’s judgment of sentence and time expired for Appellant to file an 

appeal with the Pennsylvania Supreme Court. 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 1113(a). Accordingly, Appellant’s judgment of sentence became

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2 The exceptions to the timeliness requirement are:

(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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

3 Until recently, a petition invoking an exception was required to be filed within 

sixty days of the date the claim could have been presented. However, Act 

146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now 

provides that a PCRA petition invoking a timeliness exception must be filed 

within one year of the date the claim could have been presented. See 2018 

Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, § 2 and 

§ 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or 

thereafter.”). Because Appellant’s instant PCRA petition was filed prior to the 

effective date of this provision, it is inapplicable to our analysis.
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final prior to the effective date of the PCRA amendments. However, 

Appellant’s instant PCRA petition filed on October 9, 2012, does not qualify for 

the grace proviso as it was neither Appellant’s first PCRA petition nor was it 

filed before January 16, 1997. Thus, the instant PCRA petition is patently 

untimely.

As previously stated, if a petitioner does not file a timely PCRA petition, 

his petition may nevertheless be received under any of the three limited 

exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. 

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his 

petition within sixty days of the date that the exception could be asserted. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s 

one-year filing deadline, “the petitioner must plead and prove specific facts 

that demonstrate his claim was raised within the sixty-day time frame” under 

Section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. 

Super. 2001).

Appellant presents the following issues for our review, which we present

verbatim:

I. WHETHER THE LOWER COURT JUDGE ABUSED ITS 

DISCRETION, COMMITTEED AND ERROR OF LAW, AND VIOLATER 

HER OATH OF OFFICE ,IN FAILING TO DECIDE A NON-WAIVABLE 

CLAIM OF AND ILLEGAL SENTENCE, WHERE THE PROCEDURE OF 

JURISDICTIONAL RESTRAINT ON AND UNTIME;Y WRIT OF 

HABEAS CORPUS WAS DICTIM, citing BURTON AMICUS 

ARGUMENT WHERE SENTENCE WAS NOT AUTHORIZED BY 

STATUTE, AS A MATTER OF LAW.
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II. WHETHER THE DECISION IN MONTGOMERY V LOUISANNA

SURROUNDING ISSUE OF ILLEGAL SENTENCE, IMPOSED 

ABSENCE STATUTORY AUTHORIZATION, SET A PRECIDENT, 

COMPELLING PCRA STATE COURTS TO GRANT RELIEF, AS 

ESTABLISHED IN EX-PARTE SIEBOLD et.al.

Appellant’s Brief at 4, (verbatim).4

Claims of illegal sentences must be presented in a timely PCRA petition 

or fit within one of the exceptions to the PCRA time-bar. See 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (claims challenging 

legality of sentence are subject to review within PCRA, but must first satisfy 

PCRA’s time limits). As explained previously, Appellant’s instant PCRA petition 

is patently untimely. In his petition, Appellant attempts to satisfy the newly

recognized constitutional-right exception to the PCRA time-bar by citing to 

Martinez v. Ryan, 123 S.Ct. 1309 (2012). This Court, however, has made 

clear that “while Martinez represents a significant development in habeas 

corpus law, it is of no moment with respect to the way Pennsylvania courts 

apply the plain language of the time bar set forth in section 9545(b)(1) of the 

PCRA.” Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013).

Moreover, in his brief on appeal, Appellant attempt to invoke an 

exception to the time-bar on the basis of Montgomery v. Louisiana, 136 

S.Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1880). Appellant’s 

Brief at 12-15. In Montgomery, the United States Supreme Court held that 

its decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), applies retroactively 

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4 Although Appellant also raised claims of ineffective assistance of counsel in 

his petitions, Appellant does not raise those claims on appeal to this Court.
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to cases on collateral review. Montgomery, 136 S.Ct. at 736. Miller held 

that it is unconstitutional for state courts to impose an automatic life sentence 

without the possibility of parole upon a homicide defendant for a murder 

committed while the defendant was a juvenile. Miller, 132 S.Ct. at 2460.

However, Miller is inapplicable to Appellant, who was an adult at the time he 

committed murder. Arrest Report, 10/15/90, at 1.5 Further, Appellant has 

not pointed to any law in support of his contention that Montgomery applies 

to all cases involving allegedly unconstitutional sentences. Therefore, we 

reject Appellant’s contention that he is eligible for relief under Montgomery, 

and conclude that the PCRA court properly dismissed his PCRA petition.

Because the instant PCRA petition was untimely and no exceptions 

apply, the PCRA court lacked jurisdiction to address the claims presented and 

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/29/21

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5 The arrest report reflects that the murders occurred in 1990, and Appellant’s 

date of birth is February 26, 1951.