J-S60008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE A. COLON,

Appellant No. 3683 EDA 2015

Appeal from the PCRA Order November 24, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0310501-2003, CP-51-CR-0310511-

2003

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 28, 2016

Appellant, Jose A. Colon, appeals from the order denying his second 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

We previously summarized the facts of the crime as follows:

On February 19, 2003 in the area of 3300 Jasper Street in 

Philadelphia, an argument started between neighborhood 

resident Cynthia Colon and several young females. Cynthia 

Colon sold drugs on the corner of Jasper and Wensley Streets for 

an organization headed by Appellant and his co-defendant in the 

instant case, David Lopez. The young women with whom 

Cynthia Colon quarreled were affiliated with a rival drug gang 

headed by a man known as “Flacco.” Flacco wanted to expand 

territory onto the corner controlled by Appellant and codefendant.

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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Several hours after the altercation, Cynthia Colon was 

accosted by Earnest Barker, an associate of Flacco’s. Cynthia 

Colon’s uncle, Edwin Colon, came outside and began to fight with 

Ernest Barker. A crowd that included partisans of both gangs 

gathered to watch the fight. Appellant, co-defendant, and an 

unidentified black male arrived at the scene. As Edwin Colon 

gained the upper hand in the fight, co-defendant passed the 

unidentified black male a gun and told him to shoot Ernest 

Barker.

Affiliates of both gangs drew weapons. Shots were fired. 

Co-defendant told Appellant to “shoot, shoot.” Appellant 

retrieved a loaded AK-47 assault rifle he had concealed under a 

nearby truck and began shooting. As the crowd scattered, 

bystander Angel Rodriquez was shot in the back. Ernest Barker 

was shot in the leg. Ernest Barker survived his wound, but 

Angel Rodriquez died shortly after the shooting.

On March 23, 2004, the joint jury trial of Appellant and codefendant commenced before the trial court. At trial three 

witnesses testified to the same material facts contained herein. 

The jury was charged concerning self-defense, transferred 

intent, and mistaken belief of right to self-defense including heat 

of passion voluntary manslaughter.

Commonwealth v. Colon, 883 A.2d 686 (Pa. Super. filed July 20, 2005) 

(unpublished memorandum at 1–2).

The PCRA court described the procedural history as follows:

On March 30, 2004, following a jury trial, Petitioner was 

convicted of voluntary manslaughter, violations of the Uniform 

Firearms Act (“VUFA”), possessing an instrument of crime 

(“PlC”), recklessly endangering another person (“REAP”), and 

aggravated assault. On June 18, 2004, Petitioner was sentenced 

to an aggregate term of twenty to forty years’ imprisonment. 

On July 20, 2005, following a direct appeal, the Superior Court 

affirmed in part, vacated in part, and remanded for resentencing 
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on the PIC conviction.2 The Pennsylvania Supreme Court denied 

allocatur on December 28, 2005.3 On March 9, 2006, the lower 

court reimposed its sentence on the PIC charge.

2 Commonwealth v. Colon, 883 A.2d 686 (Pa. 

Super. 2005)(unpublished memorandum).

3 Commonwealth v. Colon, 891 A.2d 729 (Pa. 

2005).

On June 14, 2006, Petitioner filed his first timely pro se

PCRA petition. Appointed counsel subsequently filed a 

Turner/Finley4 no-merit letter on November 20, 2007. On 

January 15, 2008, the PCRA court denied his petition. On 

February 9, 2009, the Superior Court affirmed the dismissal.5 

The Pennsylvania Supreme Court denied allocatur on September 

1, 2009.6

4

 Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988)(en banc).

5

 Commonwealth v. Colon, 970 A.2d 465 (Pa. 

Super. 2009)(unpublished memorandum).

6

 Commonwealth v. Colon, 983 A.2d 726 (Pa. 

2009).

On June 18, 2015, Petitioner filed the instant pro se PCRA 

petition, his second. Pursuant to Pennsylvania Rule of Criminal 

Procedure 907, Petitioner was served notice of the lower court’s 

intention to dismiss his petition on October 13, 2015. On 

November 24, 2015, the PCRA court dismissed his petition as 

untimely. On December 8, 2015, the instant notice of appeal 

was timely filed to the Superior Court.

PCRA Court Opinion, 1/7/16, at 1–2.

Appellant purports to raise the following issue on appeal:

As the Pennsylvania Superior and Supreme Courts have found 

section 9712 to be facially unconstitutional in its entirety, is the 

Appellant entitled to relief from his illegal sentence as the statute 
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has been unconstitutional from the date of its passage and 

ineffective for any purpose?

Appellant’s Brief at 5 (full capitalization omitted).

“In reviewing the propriety of an order granting or denying PCRA 

relief, an appellate court is limited to ascertaining whether the record 

supports the determination of the PCRA court and whether the ruling is free 

of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 

2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)). 

We grant great deference to the PCRA court’s findings that are supported in 

the record and will not disturb them unless they have no support in the 

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 

2014). “There is no absolute right to an evidentiary hearing on a PCRA 

petition, and if the PCRA court can determine from the record that no 

genuine issues of material fact exist, then a hearing is not necessary.” 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting 

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a 

decision is within the discretion of the PCRA court and will not be overturned 

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 

617 (Pa. 2015).

The timeliness of a PCRA petition is a jurisdictional threshold that may 

not be disregarded in order to reach the merits of the claims raised in a 

PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759, 

762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s] 
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burden to allege and prove that one of the timeliness exceptions applies. 

See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). 

Whether [a petitioner] has carried his burden is a threshold inquiry prior to 

considering the merits of any claim.” Commonwealth v. Edmiston, 65 

A.3d 339, 346 (Pa. 2013).

In order to be considered timely, a first, or any subsequent PCRA 

petition, must be filed within one year of the date the petitioner’s 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).

As noted, Appellant was resentenced on March 9, 2006, and he did not 

file a direct appeal following re-imposition of sentence. Thus, Appellant’s 

judgment of sentence became final on April 10, 2006,1thirty days after the 

time expired for Appellant to file a direct appeal to this Court. 42 Pa.C.S. 

§ 9545(b)(3). Pursuant to the PCRA, Appellant had one year, or until 

April 10, 2007, in which to file a timely PCRA petition. Thus, Appellant’s 

____________________________________________

1

 The thirtieth day fell on April 8, 2006, which was a Saturday. Whenever 

the last day of any period referenced in a statute falls on a Saturday or 

Sunday, we omit that day from the computation. 1 Pa.C.S. § 1908.
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second PCRA petition is patently untimely as it was not filed until June 18, 

2015.

Nevertheless, 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 (iii), is met.2 “That burden necessarily entails an acknowledgment by 

the petitioner that the PCRA petition under review is untimely but that one 

or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However, 

the PCRA limits the reach of the exceptions by providing that a petition 

invoking any of the exceptions must be filed within 60 days of the date the 

claim first could have been presented.” Commonwealth v. Walters, 135 

A.3d 589, 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16 

____________________________________________

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).
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A.3d 1144, 1146 (Pa. Super. 2011), and 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).

The PCRA court appropriately and succinctly addressed Appellant’s 

issue as follows:

[Appellant’s] instant petition challenged the legality of his 

sentence in light of Commonwealth v. Newman, 99 A.3d 86 (Pa. 

Super. 2014).7 See PCRA petition at 5 (unpaginated). . . .

7 [Appellant] mistakenly attributed the abrogation of 

42 Pa.C.S.A. §9712(a) to Commonwealth v. 

Newman, 99 A.3d 86 (Pa. Super. 2014). Newman

however confronted the constitutionality of 42 

Pa.C.S.A. § 9712.1. Nevertheless, Commonwealth v. 

Valentine, 101 A.3d 801 (Pa. Super. 2014), which 

did address the relevant mandatory minimum 

section 9712(a), neither created a new constitutional 

right under the PCRA nor extended the retroactive 

application of Alleyne v. United States, 133 S.Ct. 

2151 (2013).

Rather than complying with 42 Pa.C.S.A. § 9545(b)(1), 

[Appellant] repudiated his obligation to establish timeliness, 

arguing that the time-bar is inapplicable due to the illegality of 
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his sentence.8 See id.at 8. It seems [Appellant] erroneously 

conflated the validity of [the] mandatory minimum statute, 42 

Pa.C.S.A. §9712(a), with that of the PCRA time-bar. However, 

an allegation alleging that a sentence currently being served is 

illegal is not an exception to the PCRA court’s timeliness 

requirement. Commonwealth v. Pate, 2014 WL 10790083, at *1 

(Pa. Super. 2014) (citing Commonwealth v. Grafton, 928 A.2d 

1112, 1114 (Pa. Super. 2007) (“even claims that a sentence is 

illegal . . . are not beyond the jurisdictional time restrictions.”)). 

[Appellant’s] failure to plead specifically the applicability of any 

of the exceptions to the time requirements of the PCRA was fatal 

to his petition.

8

 It is readily apparent that the only exception to the 

time requirements of the Act that could conceivably 

apply is the exception enumerated at 

§ 9545(b)(1)(iii), which [Appellant] explicitly 

disavowed. See 907 Response, 11/2/15 at 1. 

Nonetheless, his petition referencing Alleyne was 

deficient in two distinct, but equally fatal ways. 

Firstly, his petition failed to invoke the exception 

within sixty days of the date the claim could have 

been presented, namely June 17, 2013, the date the 

United States Supreme Court decided Alleyne. His 

petition was not filed until 2015, well beyond the 

sixty-day mandate. Secondly, in the recent decision 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. 

Super. 2014), the Superior Court concluded that 

“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.”

PCRA Court Opinion, 1/7/16, at 3–4.3

____________________________________________

3

 Moreover, our Supreme Court recently held that “Alleyne does not apply 

retroactively to cases pending on collateral review.” Commonwealth v. 

Washington, 142 A.3d 810, 820 (Pa. 2016).
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Therefore, because the instant PCRA petition was untimely and no 

exceptions apply, the PCRA court lacked jurisdiction to address the claims 

presented. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. 

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

petition). Likewise, we lack the authority to address the merits of any 

substantive claims raised in the PCRA petition. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to 

a court’s right or competency to adjudicate a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/2016