J-S68003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHURON BARNELL PORTER,

Appellant No. 986 WDA 2015

Appeal from the PCRA Order April 20, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0001703-1999

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

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 7, 2016

Appellant, Shuron Barnell Porter, appeals pro se from the order 

denying his serial petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The trial court summarized the underlying facts of this case as follows:

On December 26, 1998 a man entered the zone one police 

station and approached Pittsburgh Police Officer J. Mook. The 

man told Officer Mook that he lent his van to a black male in 

exchange for drugs and that the van had not been returned to 

him. The man claimed he had seen the van parked nearby just 

before he came to the station. The man gave Officer Mook a 

description of the van and Officer Mook went looking for it.

Within five minutes of leaving the station Officer Mook 

discovered the van traveling on Manhattan Street. Officer Mook 

turned behind the van, applied his overhead lights and stopped 

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*

 Retired Senior Judge assigned to the Superior Court.
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his vehicle behind the van. Officer Mook approached the driver’s 

side of the van and explained to [Appellant], who was driving, 

and the passenger, the reason for his stopping the van. During 

the discussion, [Appellant] reached under his leg. Officer Mook 

told [Appellant] to keep his hands where he could see them. 

[Appellant] kept moving his hands and the officer repeated his 

instruction. However, based on [Appellant’s] behavior Officer 

Mook radioed for backup. Officer O’Donnell arrived 

approximately two (2) minutes later. [Appellant] continued to 

move his hands and Officer Mook put his hands on his gun and 

pepper spray. As Officer O’Donnell exited his vehicle, Officer 

Mook signaled to him that there is a passenger in the van. 

Officer Mook opened the driver’s side door. [Appellant] grabbed 

the door and slammed it shut. [Appellant] then started moving 

the van and moved several feet before stalling. As the van was 

moving, Officer Mook ran to his vehicle. However, when the van 

stalled [Appellant] jumped out of the van and fled on foot. Both 

Officer Mook and Officer O’Donnell pursued [Appellant] taking 

four (4) or five (5) steps before [Appellant] turned around and 

fired approximately eight (8) shots at them. Officer O’Donnell 

dove to the ground, covering his head while Officer Mook ran 

back to his vehicle and took cover in the back seat. [Appellant] 

then fled the scene. The Officers were unable to apprehend 

[Appellant] at that time. [Appellant] was eventually traced to a 

house on Milroy Street where he was apprehended on January 

29, 1999. When [Appellant] was arrested, he had, concealed in 

his pocket, the same gun used to shoot at the officers.

Trial Court Opinion, 9/14/00, at 3-4 (citations omitted).

On March 5, 1999, Appellant was charged with two counts each of 

criminal attempt (homicide), aggravated assault, recklessly endangering 

another person, and violation of the Uniform Firearms Act. On January 13, 

2000, a jury found Appellant guilty of all of the charges. On March 8, 2000, 

Appellant was sentenced to an aggregate term of incarceration of twentyone to fifty years based on consecutive sentences of eight to twenty years of 

incarceration for the two counts of criminal attempt and of two and one-half 
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to five years of incarceration for the two counts of violation of the Uniform 

Firearms Act.

Appellant then timely appealed to this Court. On appeal, Appellant 

argued that the trial court erred when it incorrectly instructed the jury on 

the mental state required for criminal attempt and aggravated assault and 

when it sentenced him to two counts of violation of the Uniform Firearms Act 

for the same possessory conduct. On July 12, 2001, a panel of this Court 

agreed with Appellant that the trial court incorrectly instructed the jury on 

the mental state required for criminal attempt. Consequently, this Court 

vacated the sentence for the two counts of criminal attempt and remanded 

the case for retrial of those charges. However, we affirmed the convictions 

for the two counts of aggravated assault, two counts of recklessly 

endangering another person, and two counts of violation of the Uniform 

Firearms Act and ordered the trial court, on remand, to impose sentence 

upon those convictions. Commonwealth v. Porter, 782 A.2d 1058, 705 

WDA 2000 (Pa. Super. filed July 12, 2001) (unpublished memorandum).

The Commonwealth did not seek retrial on the criminal attempt 

charges, and formally moved to withdraw those charges, thus, leaving the 

trial court with only sentencing responsibilities upon remand. On October 

15, 2001, Appellant was resentenced to an aggregate term of incarceration 

of twenty-one to fifty years based on consecutive sentences of eight to 

twenty years for the two counts of aggravated assault and of two and one-
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half to five years for the two counts of violation of the Uniform Firearms Act. 

Appellant filed post-sentence motions, which the trial court denied.

Appellant then filed a direct appeal from the new judgment of 

sentence. On November 8, 2002, a panel of this Court affirmed Appellant’s 

judgment of sentence, and our Supreme Court denied Appellant’s petition for 

allowance of appeal on September 3, 2003. Commonwealth v. Porter, 

816 A.2d 333, 2097 WDA 2001 (Pa. Super. filed November 8, 2002) 

(unpublished memorandum), appeal denied, 831 A.2d 599 (Pa. 2003).

On June 8, 2004, Appellant filed his first PCRA petition. The PCRA 

court appointed counsel, who then filed a motion to withdraw and a 

Turner/Finely1 no-merit letter on October 18, 2005. The PCRA court filed 

a notice of intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907 

and permitted counsel to withdraw. Appellant filed a pro se response on 

December 22, 2005, and the PCRA court entered an order dismissing the 

PCRA petition on January 10, 2006. Appellant then appealed and, on July 

11, 2007, a panel of this Court affirmed the order denying PCRA relief. 

Commonwealth v. Porter, 932 A.2d 261, 306 WDA 2006 (Pa. Super. filed 

July 11, 2007) (unpublished memorandum).

On February 26, 2008, Appellant filed, pro se, his second PCRA 

petition. The Commonwealth filed a response on March 31, 2008. On April 

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1 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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4, 2008, the PCRA court issued a notice of intent to dismiss the PCRA 

petition pursuant to Pa.R.Crim.P. 907. Appellant filed a response to the 

Commonwealth’s response and a response to the PCRA court’s notice of 

intent to dismiss. On April 29, 2008, the PCRA court entered an order 

dismissing Appellant’s second PCRA petition. Appellant filed a timely pro se

appeal, which we dismissed on June 16, 2009, for failure to file a brief. 

Order, 6/16/09, at 1.

On February 11, 2015, Appellant filed, pro se, the instant PCRA 

petition, which is his third. On March 26, 2015, the PCRA court issued a 

notice of intent to dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 

907. Appellant filed a response on April 16, 2015. The PCRA court 

dismissed Appellant’s PCRA petition on April 20, 2015. This timely appeal 

followed.2

Appellant presents the following issue for our review:

1. DID THE TRIAL/P.C.R.A. COURT COMMIT CLEAR ERROR IN 

IT’S REVIEW OF APPELLANT[’]S ISSUE OF ILLEGAL AND 

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2 We note that it appears Appellant’s notice of appeal was docketed in the 

trial court on May 27, 2015, beyond the thirty-day appeal period from the 

April 20, 2015 order dismissing his PCRA petition. Pa.R.A.P. 105(b) and 

903(a). However, our review of the certified record reflects that Appellant’s 

notice of appeal was dated May 15, 2015, and was time stamped as having 

been received in the trial court on May 20, 2015. Moreover, the certified 

record contains an item of correspondence from the trial court’s director of 

court records to Appellant stating, “This will acknowledge receipt of your 

Notice of Appeal filed on 5-20-15.” Correspondence, 5/28/15, at 1 (Docket 

Entry 71). Therefore, we are satisfied that Appellant’s appeal is timely filed 

on May 20, 2015.
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UNCONSTITUTIONAL SENTENCE AND SHOULD THE ILLEGAL AND 

UNCONSTITUTIONAL SENTENCE BE VACATED AND THIS MATTER 

REMANDED FOR RE-SENTENCING ?

Appellant’s Brief at 5.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014) (en banc)). This Court is limited to determining whether the evidence 

of record supports the conclusions of the PCRA court and whether the ruling 

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). 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).

A PCRA petition must be filed within one year of the date that the 

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

requirement is mandatory and jurisdictional in nature, and may not be 

ignored in order to reach the merits of the petition. Commonwealth v. 

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). 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 
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Pennsylvania, or at the expiration of time for seeking the review.” 42 

Pa.C.S. § 9545(b)(3).

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 (iii), is met.3 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim could first have been presented. 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).

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3

 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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Our review of the record reflects that, upon remand, the trial court 

imposed the instant judgment of sentence on October 15, 2001. This Court 

affirmed Appellant’s judgment of sentence on November 8, 2002, and the 

Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

appeal on September 3, 2003. Appellant did not seek review in the United 

States Supreme Court. Accordingly, Appellant’s judgment of sentence 

became final on December 2, 2003, ninety days after the Pennsylvania 

Supreme Court denied Appellant’s petition for allowance of appeal and the 

time for filing a petition for review with the United States Supreme Court 

expired. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant did not file 

the instant PCRA petition until February 11, 2015. 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). 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. Commonwealth v. Beasley, 741 A.2d 

1258, 1261 (Pa. 1999). 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).
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To the extent that it may be alleged that Appellant has argued that his 

untimely petition meets all three of the timeliness exceptions due to the 

decision in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), and 

various cases applying the decision in Alleyne, we observe that this attempt 

fails. With regard to the allegation that the failure to make an Alleynerelated claim earlier was the result of governmental interference under 42 

Pa.C.S. § 9545(b)(1)(i), such claim may be summarily dismissed. “Neither 

the court system nor the correctional system is obliged to educate or update 

prisoners concerning changes in case law.” Commonwealth v. Brandon, 

51 A.3d 231, 236 (Pa. Super. 2012) (quoting Commonwealth v. Baldwin, 

789 A.2d 728, 731 (Pa. Super. 2001)). Commonwealth v. Boyd, 923 A.2d 

513, 517 (Pa. Super. 2007) (stating that, for purposes of PCRA exceptions, 

“the sixty-day period begins to run upon the date of the underlying judicial 

decision.”). Alleyne was available to all, including Appellant on the day it 

was decided, June 17, 2013. Our review of the certified record reflects that 

Appellant made no filings within sixty days of the decision in Alleyne. 

Furthermore, any allegation that a claim based on Alleyne could be made 

only after appellate courts applied Alleyne in subsequent legal decisions 

constitutes “governmental interference” lacks merit.

In addition, a claim that Alleyne and its progeny satisfy the afterdiscovered fact exception under 42 Pa.C.S. § 9545(b)(1)(ii) also lacks merit. 

A judicial opinion does not constitute after-discovered evidence for the 
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purposes of the PCRA time-bar. Commonwealth v. Watts, 23 A.3d 980, 

986-987 (Pa. 2011); see Cintora, 69 A.3d at 763 (“[A] judicial opinion does 

not qualify as a previously unknown ‘fact’ capable of triggering the 

timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA.”). 

Therefore, this claim could not provide Appellant relief from the PCRA time 

bar.

Finally, to the extent Appellant argues that Alleyne and its various 

progeny may be characterized as an attempt to assert the “new 

constitutional right” exception to the PCRA time bar under 42 Pa.C.S. § 

9545(b)(1)(iii), that claim fails as well. Recently, in Commonwealth v. 

Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court 

addressed a situation in which the defendant raised an Alleyne claim in a 

timely PCRA petition but his judgment of sentence had become final prior to 

the Alleyne decision. The Washington Court stated:

[A] new rule of law does not automatically render final, preexisting sentences illegal. A finding of illegality concerning such 

sentences may be premised on such a rule only to the degree 

that the new rule applies retrospectively. In other words, if the 

rule simply does not pertain to a particular conviction or 

sentence, it cannot operate to render that conviction or sentence 

illegal.

* * *

[N]ew constitutional procedural rules generally pertain to future 

cases and matters that are pending on direct review at the time 

of the rule’s announcement.
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Id. at 814-815. See also id. at 815 (stating “if a new constitutional rule 

does not apply, it cannot render an otherwise final sentence illegal”). The 

Washington Court applied the retroactivity analysis delineated in Teague 

v. Lane, 489 U.S. 288 (1989) (plurality),4and determined the rule 

announced in Alleyne is not a substantive or watershed procedural rule that 

would warrant retroactive application. Washington. The Court held the 

defendant was not entitled to retroactive application of Alleyne because his 

judgment of sentence had become final before Alleyne was decided. Id. 

The Washington Court definitively held that “Alleyne does not apply 

retroactively to cases pending on collateral review.” Washington, 142 A.3d 

at 820. Moreover, the Court declined to “recognize an independent statelevel retroactivity jurisprudence grounded on fairness considerations.” Id. 

at 819. In summary, Washington stands for the proposition that no 

Alleyne violation can occur where the defendant’s sentence was imposed 

and became final before Alleyne was decided.

As previously noted, Appellant’s judgment of sentence became final on 

December 2, 2003. Alleyne was decided on June 13, 2013. Alleyne, 133 

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4

“Under the Teague framework, an old rule applies both on direct and 

collateral review, but a new rule is generally applicable only to cases that are 

still on direct review. A new rule applies retroactively in a [federal] collateral 

proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed 

rule of criminal procedure’ implicating the fundamental fairness and accuracy 

of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416 

(2007) (internal citations omitted).
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S.Ct. at 2151. Appellant’s judgment of sentence was finalized nearly ten 

years before Alleyne was decided. Therefore, Appellant does not qualify for 

the new constitutional right exception to the PCRA time bar under Alleyne.

In conclusion, because Appellant’s PCRA petition was untimely and no 

exceptions apply, the PCRA court correctly determined that it 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). 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: 11/7/2016