J-S24033-20

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

FREDDY MCCUTCHEN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1323 EDA 2019

Appeal from the Judgment of Sentence Entered April 8, 2019

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0701591-1971

BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 22, 2020

Freddy McCutchen (Appellant) appeals pro se from the April 8, 2019 

judgment of sentence of 40 years to life imprisonment imposed following a 

resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012).

1

Upon review, we conclude that the PCRA court lacked jurisdiction to vacate 

Appellant’s original judgment of sentence, and therefore quash.

A prior panel of this Court provided the following background.

This case has been the subject of four prior published decisions. 

In 1973, a jury initially found Appellant guilty of killing a sixyear[-]old boy after sodomizing the victim [(Victim)]. The facts 

of the brutal slaying are unnecessary to our disposition and are 

 

1

In Miller, the United States Supreme Court held that a “mandatory 

[sentence of] life without parole [(LWOP)] for those under the age of 18 at 

the time of their crimes violates the Eighth Amendment’s prohibition on cruel 

and unusual punishments.” 567 U.S. at 465 (internal quotation marks 

omitted).
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set forth in our Supreme Court’s 1982 decision. 

Commonwealth v. McCutchen, 454 A.2d 547 (Pa. 1982).[2]

At the time of the crime, Appellant was fifteen.[3] His initial 

conviction for first-degree murder was reversed by the 

 

2 Our Supreme Court set forth the evidence as follows.

Evidence adduced at trial established that on June 7, 1971, at 

approximately 9:05 P.M., [Appellant], known as “Shank,” 

wearing a yellow jacket with a round, blue emblem, was seen 

walking with [] six-year-old [V]ictim and calming him after

[Victim’s] involvement in a scuffle with another child. They 

walked in the general direction of the crime scene. Later, [] 

fifteen-year-old [Appellant], no longer wearing the yellow jacket, 

was seen entering a taproom where he washed his hands. At 

approximately 10:30 P.M. that evening, the battered body of 

[V]ictim was found in a dark, abandoned area behind a vacant 

factory within blocks of where he was seen with [Appellant]. 

Slacks around his ankles, undershorts pulled up around his 

waist, [Victim] was pronounced dead at the scene. His shirt, 

stained with feces and semen, was on the ground four feet 

away. Near [Victim’s] shirt was a large black, “bush type,” comb 

with “Shank” scratched on the handle. A yellow jacket with a 

round, blue emblem was found one and one-half days later not 

far from the scene. Stained with both blood of [V]ictim’s type 

and semen consistent with [Appellant’s] type, the jacket was 

identified as the one worn by [Appellant] when he was seen 

calming [V]ictim and walking in the general direction of the 

vacant factory.

The medical examiner testified to the various severe injuries to 

the head, producing at least three comminuted fractures of the 

skull, opined to have been inflicted by blows of a heavy rounded 

object. Also recounted was the tearing of the marginal area of 

the anus in four discrete areas, as a result of the anal sodomy, 

and the outcome of laboratory examination of material from the 

anal area which established the presence of semen.

454 A.2d at 548.

3 The record is inconsistent as to whether Appellant was 15 or 16 at the time 

of the crime, but our Supreme Court reviewed the crime as happening when 

(Footnote Continued Next Page)
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Pennsylvania Supreme Court because he had confessed to the 

crime without being afforded an opportunity to speak with his 

mother or another interested adult. Commonwealth v. 

McCutchen, 343 A.2d 669 (Pa. 1975). Concomitantly, [this] 

Court reversed his sodomy conviction for the same 

reason. Commonwealth v. McCutchen, 369 A.2d 291 (Pa.

Super. 1976).

Thereafter, the Commonwealth retried Appellant for the murder 

and nolle prossed the sodomy count. A jury again convicted 

Appellant of first-degree murder on May 5, 1976. [On April 5, 

1977, Appellant was sentenced to a mandatory sentence of 

LWOP.] This Court reversed on the basis that two color slides of 

[] six-year-old [V]ictim’s body, which were shown to the jury, 

were too gruesome and inflammatory. Commonwealth v. 

McCutchen, 417 A.2d 1260 (Pa. Super. 1979). However, the 

Pennsylvania Supreme Court reversed that decision and 

remanded to the Superior Court for consideration of additional 

issues not addressed. McCutchen, 454 A.2d 547. This Court 

then affirmed. Commonwealth v. McCutchen, 488 A.2d 1165 

(Pa. Super. 1984) (unpublished memorandum). The Supreme 

Court denied allocatur on April 10, 1985.

McCutchen, 121 A.3d 1126 (Pa. Super. 2015) (unpublished memorandum 

at 2) (footnotes omitted). Appellant subsequently filed petitions pursuant to 

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, and its 

predecessor, in 1989, 1990, 2005, 2012, 2016, and 2018.

4

 

(Footnote Continued) _______________________

Appellant was 15 years old, and, according to Appellant’s answer at his 

resentencing hearing, he would have been 15 years old at the time of the 

murder. See McCutchen, 454 A.2d at 548; N.T., 4/8/2019, at 10-13 

(discussing inconsistencies in the record regarding Appellant’s date of birth, 

and Appellant’s providing his date of birth).

4 On April 29, 2015, Appellant filed a petition for a writ of habeas corpus in 

federal court based in part upon Miller. The District Court denied and 

dismissed Appellant’s petition in part, holding the portion seeking relief 

pursuant to Miller in abeyance. See McCutchen v. Wenerowicz, 2018 WL 

2250876 at *1 & n.1 (E.D.Pa. 2018) (unreported order) (“While 

(Footnote Continued Next Page)
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Of particular relevance to this appeal are the 2012, 2016, and 2018 

petitions. In 2012, Appellant sought relief, inter alia, for his LWOP sentence 

based on Miller. This Court affirmed the PCRA court’s dismissal of 

Appellant’s Miller claim pursuant to Commonwealth v. Cunningham, 81 

A.3d 1 (Pa. 2013) (overruled), which had held that Miller did not apply 

retroactively to claims on collateral review. See McCutchen, 121 A.3d 

1126 (unpublished memorandum). Appellant did not seek review before our 

Supreme Court.

On January 25, 2016, the United States Supreme Court held that 

Miller’s prohibition on LWOP sentences for juvenile offenders announced a 

new substantive rule that applied retroactively in cases on collateral review, 

overruling Cunningham. Montgomery v. Louisiana, ___ U.S. ___, 136 

S.Ct. 718 (2016). Appellant did not file a PCRA petition pursuant to 

Montgomery. Following Montgomery, the Defender Association of 

Philadelphia (DAP) compiled a list of 66 individuals, including Appellant, who 

it believed were entitled to Miller/Montgomery relief. On May 25, 2016, 

DAP was appointed to represent Appellant and the 65 other individuals in 

(Footnote Continued) _______________________

[Appellant’s] Miller claim also appears to be untimely, this Court will, by 

separate order, appoint the Federal Community Defender Office for the 

Eastern District of Pennsylvania to represent Petitioner on this claim. This 

Court will hold in abeyance its decision on [Appellant’s] Miller claim until the 

Federal Community Defender Office has an opportunity to respond to the 

timeliness issue and the merits of the claim.”). There is no indication in the 

record or in this Court’s independent research as to the status of Appellant’s 

federal case.
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connection with any Montgomery proceedings. Following appointment, 

DAP did not file a PCRA petition based on Montgomery.

On June 22, 2016, Appellant pro se filed a petition seeking relief 

pursuant to Williams v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 1899 

(2016) (holding “that under the Due Process Clause there is an 

impermissible risk of actual bias when a judge earlier had significant, 

personal involvement as a prosecutor in a critical decision regarding the 

defendant’s case”). Specifically, Appellant averred that Pennsylvania 

Supreme Court Justice McDermott, who was the judge at Appellant’s jury 

trial, should have recused himself from Appellant’s appeal before that Court 

in 1982. 

On August 15, 2016, as part of the “Juvenile Lifers Sentenced Without 

the Possibility of Parole Program,” a “PCRA Conference Order” was entered 

tentatively scheduling Appellant for a resentencing hearing on October 17, 

2016. Order, 8/15/2016.5 On October 25, 2016, the Commonwealth filed 

an answer, purportedly in response to a PCRA petition seeking 

Miller/Montgomery relief, conceding that Appellant was entitled to such 

relief. However, no PCRA petitions raising a Miller/Montgomery claim 

appear in the record prior to the filing of this purported answer. In its March 

15, 2017 answer to Appellant’s 2016 pro se PCRA petition raising a 

 

5 We are unable to glean any additional information on this program from 

the record. 
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Williams claim, the Commonwealth stated that no petition pursuant to 

Miller/Montgomery had been filed when it filed its October 25, 2016

answer. Commonwealth’s Response, 3/15/2017, at 3 (unnumbered). In 

Appellant’s pro se response to the Commonwealth, Appellant raised for the 

first time, in cursory fashion at the conclusion of his Williams analysis, that 

his LWOP sentence was illegal pursuant to Montgomery. Appellant’s 

Response, 3/29/2017, at 6.

The PCRA court appointed non-DAP counsel on Appellant’s Williams

petition, and that counsel filed a petition to withdraw and Turner/Finley6

no-merit letter. The PCRA court ultimately dismissed Appellant’s 2016 PCRA 

petition raising a Williams claim as untimely. On October 16, 2018, this 

Court affirmed the PCRA court’s dismissal. Commonwealth v. McCutchen, 

200 A.3d 567 (Pa. Super. 2018) (unpublished memorandum). 

On December 7, 2018, and December 17, 2018, additional “PCRA 

Conference Orders” were issued, rescheduling Appellant’s purported 

resentencing hearing. On December 18, 2018, DAP filed for the first time a 

PCRA petition challenging the legality of Appellant’s LWOP sentence under 

Montgomery. Therein, counsel acknowledged that he had failed to file 

timely a petition, but argued that all parties had been operating as if 

Appellant had filed timely a petition following Montgomery, and requested 

 

6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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that the PCRA court consider Appellant’s December 18, 2018 petition nunc 

pro tunc. PCRA Petition, 12/18/2018, at 2 (unnumbered) (“[S]ince the lack 

of having filed a Montgomery claim appears to have been a mere 

administrative oversight, in the interest of justice, [Appellant] respectfully 

requests that [the PCRA court] reinstate his Miller/Montgomery PCRA 

nunc pro tunc, and continue its diligent efforts at permitting vacation of the 

mandatory life sentence, and re[]sentencing [Appellant] according to the 

current [juvenile LWOP resentencing] procedures.”). On January 4, 2019, 

the PCRA court granted Appellant’s request to consider his December 18, 

2018 petition nunc pro tunc.

7

On April 8, 2019, the PCRA court granted Appellant’s December 18, 

2018 PCRA petition, vacated his 1977 LWOP sentence, and held a 

resentencing hearing in accordance with Commonwealth v. Batts (Batts 

II), 163 A.3d 410 (Pa. 2017).

8

 After hearing the arguments of counsel and 

 

7 For the reasons discussed at length infra, the court lacked jurisdiction to 

consider the PCRA petition.

8

In Batts II, our Supreme Court held that in resentencing a juvenile 

defendant convicted of first-degree murder pre-Miller, a court may sentence 

the defendant to LWOP only after finding him “permanently incorrigible and 

that rehabilitation would be impossible[;]” otherwise, the defendant shall be 

sentenced to life with the possibility of parole following a minimum term-ofyears sentence. 163 A.3d at 459-60. Here, the Commonwealth conceded 

that it could not prove Appellant was incorrigible and incapable of 

rehabilitation, and therefore did not seek a LWOP sentence. N.T., 4/8/2019, 

at 15-16. Due to the surrounding circumstances of the murder, even though 

Appellant was not convicted of sodomy at his second trial, the 

Commonwealth requested that Appellant be supervised upon release by a 

(Footnote Continued Next Page)
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victim impact statements from Victim’s sister and father, the court 

sentenced Appellant as follows.

[T]his is one of the worst cases that I have seen. The damage 

that you caused and the pain that you caused can’t be described. 

And you heard from [Victim’s sister] that her mother attempted 

to commit suicide multiple times as a result of your actions. So 

you had this happy family who has been destroyed. That 

doesn’t diminish how you destroyed your own life, but it is 

hereby the sentence of this [c]ourt that you serve a period of not 

less than 40 nor more than life imprisonment.

Now, I am making a condition that you undergo a sex treatment 

program in the prison before you are eligible for parole. So 

make sure you hear me and understand me. In the past, you 

may have refused programs and you can refuse programs again. 

But if you don’t complete a sex offender program in prison, the 

Parole Board is not going to consider paroling you, nor will I 

when they ask me what my recommendations are. 

***

So, you have the time credit in, but so we understand, get that 

program done and then you’ll be eligible for parole. Time for 

credit.

N.T., 4/8/2019, at 39-41. 

Immediately following the court’s imposition of sentence, Appellant 

indicated that he wanted to represent himself for purposes of appeal. 

Accordingly, the court held a hearing pursuant to Commonwealth v. 

Grazier, 713 A.2d 1 (Pa. 1998). See N.T., 4/8/2019, at 41-51. At the 

(Footnote Continued) _______________________

sex offender unit of the Parole Board. Id. at 33-34. DAP conveyed 

Appellant’s request of a sentence of 221⁄2 to 45 years, but acknowledged that 

such a sentence was not legally permissible under Batts II. Alternatively, 

DAP asked the court to sentence Appellant to 35 years to life. Id. at 31-32. 

It was undisputed that Appellant had been in prison for 48 years at the time 

of his resentencing hearing.
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conclusion of the hearing, the court permitted DAP to withdraw and granted 

Appellant’s request to proceed pro se. Id. at 51. 

On April 15, 2019, Appellant filed a motion for reconsideration of 

sentence based on, inter alia, (1) the Commonwealth’s reading aloud a 

portion of Appellant’s statement that had previously been suppressed by 

McCutchen, 343 A.2d 669; (2) the Commonwealth’s mentioning Appellant’s 

sodomy charge even though it had been nolle prossed; (3) the court’s 

imposing a condition requiring that Appellant complete sex offender 

treatment before being eligible for parole; and (4) an alleged due process 

violation because the court imposed a new minimum sentence of 40 years 

where Appellant had 48 years’ credit, thereby causing him to lose the 

opportunity to seek parole for the last eight years. The court denied 

Appellant’s post-sentence motion on April 30, 2019.

Appellant filed a notice of appeal on April 30, 2019.9 Both Appellant 

and the resentencing court have complied with the mandates of Pa.R.A.P. 

 

9 The notice of appeal was hand-dated April 27, 2019, and received April 30, 

2019. Thus, it was filed before the court ruled on Appellant’s post-sentence 

motion. See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. 

Super. 2019) (“[T]he prisoner mailbox rule provides that a pro se prisoner’s 

document is deemed filed on the date he delivers it to prison authorities for 

mailing.”). As a general rule, this Court has jurisdiction only over final 

orders. When a post-sentence motion is filed timely, the judgment of 

sentence does not become final until the trial court disposes of the motion or 

it is denied by operation of law. Pa.R.Crim.P. 720(A)(2). “No direct appeal 

may be taken by a defendant while his or her post-sentence motion is 

pending.” Pa.R.Crim.P. 720 comment. When an appellant files a notice of 

appeal before the court has ruled on his post-sentence motions, the 

(Footnote Continued Next Page)
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1925. On appeal, Appellant raises the following questions for our review, 

which we restate verbatim. 

1. Whether where the Commonwealth introduced a confession 

which had been suppressed over 44 years ago created 

prosecutorial misconduct and violated the Appellants 

constitutional right to remain silent and as such impermissibly 

contributed to the sentence of 40 years to life?

2. Whether where the Commonwealth injected into the 

sentencing hearing a sodomy charge and conviction that had 

been reversed and nolle prosequi and the indictment 

squashed for lack of prosecution over 42 years ago 

impermissibly contributed to the sentence of 40 years to life 

and as such created prosecutorial misconduct?

3. Whether where the hearing and sentencing court ordered that 

the Appellant must enter a sex offender program and must 

complete it before he can be paroled created two 

impermissible presumptions (1) where there is no conviction 

for any sexual conduct and (2) where neither at the first trial 

held October 1972 sentence imposed on 10-3-73 nor at a 

second trial held April-May 1976 sentence imposed on April 

5th 1977 did either court order any such program nor 

conditions nor any sex offender registration once out of prison 

causes the sentencing court order of April 8th 2019 to be an 

abuse of discretion, judicial overreaching and retaliation, and 

amounts to convicting the Appellant of a crime he is not 

charged with?

4. Whether where the sentencing court imposed a 40 year 

minimum is contrary to the State Supreme Court 

(Footnote Continued) _______________________

judgment of sentence is not yet final, and any purported appeal therefrom is 

premature and interlocutory. In those circumstances, the proper remedy is 

to quash the appeal, relinquish jurisdiction, and remand for the trial court to 

consider the post-sentence motions nunc pro tunc. See Commonwealth v. 

Borrero, 692 A.2d 158, 160 (Pa. Super. 1997) (holding appeal premature 

while post-sentence motion was still pending before the lower court). In the 

instant case, although Appellant’s notice of appeal was filed prematurely, our 

jurisdiction has been perfected because the court subsequently entered an 

order denying Appellant’s post-sentence motion. 
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determination at Commonwealth v. Batts No. 79 MAP 

(2009) decided 3-26-19[10] where the Court ordered that 

juveniles convicted prior to June 25, 2012 cannot be 

subjected to the high mandatory minimum of § 1102.1 upon 

resentencing?

5. Whether where the sentencing court imposed a sentence of 

40 years to life denied the Appellant substantive due process 

and created cruel and unusual punishment violative of the 

United States Constitutions 8th and 14th Amendments where 

(1) the minimum of 40 years expired on June 8th 2011 8 

years before the sentence was imposed, and as such denied 

the Appellant the right to had submitted an application for a 

parole from 2011 to 2018 and (2) where the Appellant was 

not allowed to had challenged such sentence on appeal 

following both trials held in 1972 and 1976 and as such 

causes such sentence to be invalid?

Appellant’s Brief at 5-6 (capitalization altered).

Before we reach the merits of Appellant’s claims on appeal, we must 

first determine whether Appellant’s Montgomery claim was properly 

presented. “Appellate jurisdiction cannot be conferred by mere agreement 

or silence of the parties where it is otherwise nonexistent. We may 

accordingly raise this issue sua sponte, even though neither of the parties 

have done so.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. 

Super. 1997) (citations omitted). See also Montgomery, ___ U.S. ___, 

136 S.Ct. at 732 (“In adjudicating claims under its collateral review 

procedures a State may not deny a controlling right asserted under the 

Constitution, assuming the claim is properly presented in the case.”). 

Specifically at issue is whether the PCRA court had jurisdiction to entertain 

 

10 Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (Batts I).
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Appellant’s 2018 PCRA petition, because if it did not, the court was likewise 

without jurisdiction to vacate Appellant’s LWOP sentence, rendering the 

proceedings after it and any appeal from the 2019 sentence nullities. 

The PCRA provides that “[a]ny petition under this subchapter, 

including a second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final.” 42 Pa.C.S. 

§ 9545(b)(1). A PCRA petition may be filed beyond the one-year 

time period only if the convicted defendant pleads and proves 

one of the following three exceptions:

(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.

Id. At the time of all events relevant to this PCRA 

petition, [subs]ection 9545(b)(2) required that a PCRA petition 

invoking an exception “be filed within 60 days of the date the 

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2) (in 

effect January 16, 1996 to December 23, 2018).3 The PCRA’s 

time limit is mandatory and jurisdictional, and a court may not 

ignore it and reach the merits of the PCRA petition, even where 

the convicted defendant claims that his sentence is 

unconstitutional and illegal.

______

3

In 2018, [subs]ection 9545(b)(2) was amended to 

provide that a PCRA petition invoking an exception “shall 

be filed within one year of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2); Act of October 

24, 2018, P.L. 894, No. 146, § 2. The Act 
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amending [subs]ection 9545(b)(2) provided that the oneyear period applies only to timeliness exception claims 

arising on or after December 24, 2017. Act of October 24, 

2018, P.L. 894, No. 146, §§ 3, 4. The events [giving rise 

to Cobbs’s] claims timeliness exceptions are the 

2012 Miller decision, the 2016 Montgomery [] decision 

and [Cobbs’s] September 2017 Allegheny County case 

resentencing. Because all of these occurred prior to 

December 2017, the 60-day rather than the one-year 

period applies here.[11]

Commonwealth v. Cobbs, ___ A.3d ___, 2020 WL 880345 at *2-3 (Pa. 

Super. 2020) (some citations omitted).

“For purposes of [the PCRA], 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). Here, Appellant’s sentence became final in 1985 after our 

Supreme Court denied allocatur and Appellant declined to seek review with 

the United States Supreme Court. As such, Appellant’s 2018 petition is 

facially untimely and he was required to plead and prove an exception to the 

timeliness requirements.

Appellant did not plead any timeliness exceptions in his 2018 

petition.

12

 Instead, counsel requested that the PCRA court consider the 

 

11 Insofar as Appellant also bases his timeliness exception on the 

Montgomery decision, the 60-day period similarly applies here.

12 Even if Appellant had attempted to plead and prove any of the exceptions, 

it would have been fruitless. The only potentially applicable exception would 

(Footnote Continued Next Page)
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petition nunc pro tunc based on a “mere administrative oversight” resulting 

in Appellant’s failure to file timely a PCRA petition pursuant to 

Miller/Montgomery, and because all parties had been proceeding as if 

Appellant had timely filed a PCRA petition following Montgomery. See

PCRA Petition, 12/18/2018, at 2 (unnumbered). While counsel attempted to 

take the blame for failing to file timely a PCRA petition, it is well-settled that 

allegations of the ineffective assistance of counsel will not overcome the 

(Footnote Continued) _______________________

be the new-retroactive-right exception based upon Montgomery. The 

Supreme Court decided Montgomery on January 25, 2016. As such, PCRA 

petitions that would otherwise be untimely had to be filed by March 25, 

2016, within 60 days of the issuance of Montgomery, to invoke the newretroactive-right timeliness exception. Appellant’s 2018 petition clearly does 

not fall within that time frame, and Appellant did not file any other petition 

pursuant to Montgomery during that time frame. 

Nor can the 2018 petition be considered an extension of Appellant’s 

2012 petition invoking Miller. This Court affirmed the dismissal of 

Appellant’s 2012 petition in 2015. See McCutchen, 121 A.3d 1126 

(unpublished memorandum). Thus, Appellant’s 2012 petition was final at

the time Montgomery was issued. 

Once a PCRA petition has been decided and the ruling on it has 

become final, there is nothing for a subsequent petition or 

pleading to “extend.” Far from continuing into perpetuity, the 

[PCRA] court’s jurisdiction over a matter generally ends once an 

appeal is taken from a final order or, if no appeal is taken, thirty 

days elapse after the final order.

Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003) (“Since the 

jurisdiction of the court system over the prior PCRA petition had expired, 

appellee’s subsequent petitions were entirely new collateral actions and, as 

such, they were subject to the time and serial petition restrictions 

of [subs]ection 9545(b) of the PCRA.”).
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PCRA’s jurisdictional timeliness requirements,13 and “the nature of the 

constitutional violations alleged has no effect on the application of the PCRA 

time bar. Rather, the only cognizable exceptions are set forth 

at [subs]ection 9545(b)(1).” Commonwealth v. Edmiston, 65 A.3d 339, 

349 (Pa. 2013) (citing Commonwealth v. Wharton, 886 A.2d 1120, 1127 

(Pa. 2005)).

[Our Supreme] Court has repeatedly stated that the timeliness 

requirements are jurisdictional in nature and, accordingly, a 

PCRA court cannot hear untimely PCRA petitions. In addition, 

we have noted that [t]he PCRA confers no authority upon this 

Court to fashion ad hoc equitable exceptions to the PCRA timebar in addition to those exceptions expressly delineated in the 

Act. We have also recognized that the PCRA’s time restriction is 

constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations 

and quotation marks omitted). 

Here, Appellant’s petition was patently untimely and he failed to plead 

or prove any of the statutory timeliness exceptions. As a result, the PCRA 

court lacked jurisdiction to consider Appellant’s 2018 PCRA petition. See 

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) 

(citations omitted) (“The PCRA court lacked jurisdiction ab initio to grant 

PCRA relief, because [Valentine] filed his PCRA petition more than one year 

after his judgment of sentence became final and failed to plead or prove a 

 

13 Additionally, counsel did not seek appointment until after the 60-day 

timeframe for filing a petition invoking Montgomery as a timeliness 

exception had elapsed.
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statutory timeliness exception. Accordingly, we are likewise precluded from 

addressing the merits of Appellant’s claim and quash this appeal.”).

We are cognizant that Appellant is serving a sentence that would have 

been vacated as unconstitutional if he had filed his petition within 60 days of 

the issuance of Montgomery, because the lower court would have had

jurisdiction to grant him relief. At the same time, we note that

any formulation of a time limitation curtailing collateral judicial 

review must accept that some legitimate claims may possibly 

escape review. Nevertheless, a time bar applicable to postconviction review is a rational, and perhaps necessary, 

legislative response to serial challenges raised by prisoners that 

undermine finality and tax government resources, and to 

effectively implement a limitation, exceptions by their nature 

must contain effective boundaries to prevent them from 

undermining the general rule.

Commonwealth v. Bennett, 930 A.2d 1264, 1279 (Pa. 2007) (Saylor, J., 

dissenting) (footnote omitted). Our Supreme Court has created clear 

boundaries around the timeliness of PCRA petitions, and we cannot create a 

non-statutory exception to allow Appellant the benefit of Montgomery.

Accordingly, we conclude that the PCRA court lacked jurisdiction to 

grant Appellant’s request to review his PCRA petition nunc pro tunc or to 

grant PCRA relief. Consequently, Appellant’s 2019 sentence and appeal 

therefrom are legal nullities, and his 1977 sentence remains in effect.

Appeal quashed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/20