J-S25032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ALLAN FROST,

Appellant No. 1663 WDA 2014

Appeal from the PCRA Order September 3, 2014

in the Court of Common Pleas of Crawford County

Criminal Division at No.: CP-20-CR-0001288-1999

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

MEMORANDUM BY PLATT, J.: FILED APRIL 10, 2015

Appellant, Michael Allan Frost, appeals pro se from the order 

dismissing his tenth petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm. 

A previous panel of this Court set forth the relevant factual and 

procedural history of this case as follows:

On March 10, 2000, Appellant entered guilty pleas to three 

counts of involuntary deviate sexual intercourse [(IDSI)] and 

two counts of endangering the welfare of children after he 

engaged in improper conduct with his five children. [On May 23, 

2000,] [t]he trial court [entered an order] sentenc[ing] Appellant 

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* Retired Senior Judge assigned to the Superior Court.
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to an aggregate term of sixteen to thirty-two and one-half years 

of imprisonment.[1] Appellant did not file a direct appeal.

Subsequently, Appellant . . . filed a plethora of writs, 

motions and PCRA petitions in a series of unsuccessful attempts 

to overturn his conviction[s]. . . . 

(Commonwealth v. Frost, No. 1969 WDA 2013, unpublished memorandum 

at *1-2 (Pa. Super. filed May 6, 2014) (citations and quotation marks 

omitted)).

 On August 5, 2014, Appellant, acting pro se, filed the instant PCRA 

petition, his tenth, alleging, inter alia, that his sentence is illegal based on 

the United States Supreme Court’s decision in Alleyne v. United States, 

133 S. Ct. 2151, 2155 (2013) (holding that, to comply with dictates of Sixth 

Amendment, facts that increase mandatory minimum sentence are elements 

of offense and must be submitted to jury and proven beyond reasonable 

doubt). (See PCRA Petition, 8/05/14, at 3). On August 11, 2014, the PCRA 

court entered a memorandum and order advising the parties of its intent to 

dismiss the petition as untimely without a hearing, and stating that 

Appellant’s reliance on Alleyne is misplaced. (See Memorandum and Order, 

8/11/14, at 1-3); see also Pa.R.Crim.P. 907(1). On September 3, 2014, 

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1 The trial court imposed the mandatory minimum term of five years’ 

incarceration for each IDSI count, and ran the terms consecutively. (See

N.T. Sentencing Hearing, 5/19/00, at 8, 23-25; Sentencing Order, 5/23/00, 

at 1; Appellant’s Brief at 20); see also 42 Pa.C.S.A. § 9718 (mandatory 

minimum sentence statute relating to IDSI).
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Appellant filed a pro se response. On that same date, the court entered its 

order dismissing the PCRA petition. This timely appeal followed.2

On appeal, Appellant claims that the PCRA court erred in denying his 

petition as untimely where the sentence he is serving is illegal. (See

Appellant’s Brief, at 2-22).3 We disagree.

Our standard of review of a trial court order granting or denying 

relief under the PCRA calls upon us to determine whether the 

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2

Pursuant to the PCRA court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on October 31, 2014. See

Pa.R.A.P. 1925(b). The PCRA court entered a Rule 1925(a) opinion on 

November 13, 2014. See Pa.R.A.P. 1925(a).

3 We note that Appellant’s pro se brief falls well below the standards 

delineated in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 

2111(a). Significantly, Appellant fails to include a statement of the 

questions involved, statement of the case, or summary of the argument, in 

violation of Pa.R.A.P. 2116-18. (See Appellant’s Brief, at 1-22). What 

appears to be the argument section of his brief is not labeled as such or 

divided into questions to be argued; it instead is separated into three 

“grounds,” in violation of Pa.R.A.P. 2119. (See id. at 2-22). The arguments 

contained in the brief are underdeveloped and nearly unintelligible. (See

id.). Although we could quash or dismiss this appeal for Appellant’s failure 

to conform materially to the requirements set forth in our Rules of Appellate 

Procedure, see Pa.R.A.P. 2101, we will address Appellant’s argument to the 

extent we can discern it. See Commonwealth v. Adams, 882 A.2d 496, 

498 (Pa. Super. 2005) (declining to quash appeal despite numerous 

substantial defects in appellant’s brief). 

We also note that “although this Court is willing to construe liberally 

materials filed by a pro se litigant, pro se status generally confers no special 

benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-

52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citation 

omitted). Accordingly, a pro se litigant must comply with our procedural 

rules. See id. 
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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, 191-92 (Pa. Super. 2013) 

(citations and quotation marks omitted). 

“[W]e must first consider the timeliness of Appellant’s PCRA petition 

because it implicates the jurisdiction of this Court and the PCRA court.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted). 

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration 

of the time for seeking such review. 42 Pa.C.S.[A.] § 

9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional; therefore, a court may not address the merits of 

the issues raised if the petition was not timely filed. The 

timeliness requirements apply to all PCRA petitions, regardless of 

the nature of the individual claims raised therein. The PCRA 

squarely places upon the petitioner the burden of proving an 

untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations 

and footnote omitted). 

In this case, Appellant’s judgment of sentence became final on June 

22, 2000, thirty days after the trial court imposed its sentence and his time 

for filing a timely direct appeal expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. 

§ 9545(b)(3). Therefore, he had one year from that date to file a petition 

for collateral relief, specifically, until June 22, 2001. See 42 Pa.C.S.A. § 
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9545(b)(1). Because Appellant filed the instant petition on August 5, 2014, 

it is untimely on its face, and the PCRA court lacked jurisdiction to review it 

unless he pleaded and proved one of the statutory exceptions to the timebar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three limited exceptions that 

allow for review of an untimely PCRA petition: 

(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. “If the [PCRA] petition is determined to be untimely, and no exception 

has been pled and proven, the petition must be dismissed without a hearing 

because Pennsylvania courts are without jurisdiction to consider the merits 

of the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. 

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In 

addition, a PCRA petition invoking one of these statutory exceptions must 

“be filed within 60 days of the date the claim could have been presented.” 

42 Pa.C.S.A. § 9545(b)(2). 
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Here, Appellant claims the benefit of a newly-recognized retroactivelyapplied constitutional right to relief predicated on the United States Supreme 

Court’s decision in Alleyne, supra. (See Appellant’s Brief, at 11-22); see 

also 42 Pa.C.S.A. § 9545(b)(1)(iii). He asserts that a challenge to the 

legality of a sentence cannot be waived, and that Alleyne retroactively 

applies to this case, rendering his untimely petition reviewable on the 

merits. (See Appellant’s Brief, at 12-13). We disagree. 

Initially, we reiterate that the exception set forth in section 

9545(b)(1)(iii) applies only where “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.A. § 

9545(b)(1)(iii). 

Subsection (iii) of Section 9545 has two requirements. 

First, it provides that the right asserted is a constitutional right 

that was recognized by the Supreme Court of the United States 

or th[e Pennsylvania] Supreme Court after the time provided in 

this section. Second, it provides that the right “has been held” 

by “that court” to apply retroactively. Thus, a petitioner must 

prove that there is a “new” constitutional right and that the right 

“has been held” by that court to apply retroactively. The 

language “has been held” is in the past tense. These words 

mean that the action has already occurred, i.e., “that court” has 

already held the new constitutional right to be retroactive to 

cases on collateral review. By employing the past tense in 

writing this provision, the legislature clearly intended that the 

right was already recognized at the time the petition was filed.

Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011), appeal

denied, 38 A.3d 823 (Pa. 2012) (citations omitted). 
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Instructive to the instant case is this Court’s decision in Miller, supra, 

in which the appellant argued the applicability of section 9545(b)(1)(iii) to 

his patently untimely PCRA petition. See Miller, supra at 993. Specifically, 

the appellant averred that the Alleyne decision announced a new 

constitutional right that applies retroactively to cases on collateral review. 

See id. at 993-94. The Miller Court disagreed, explaining:

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. This is fatal to Appellant’s argument regarding the 

PCRA time-bar. This Court has recognized that a new rule of 

constitutional law is applied retroactively to cases on collateral

review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those 

cases. Therefore, Appellant has failed to satisfy the new 

constitutional right exception to the time-bar.

We are aware that an issue pertaining to Alleyne goes to 

the legality of the sentence. It is generally true that this Court is 

endowed with the ability to consider an issue of illegality of 

sentence sua sponte. However, in order for this Court to review 

a legality of sentence claim, there must be a basis for our 

jurisdiction to engage in such review. As this Court recently 

noted, [t]hough not technically waivable, a legality [of sentence] 

claim may nevertheless be lost should it be raised . . . in an 

untimely PCRA petition for which no time-bar exception applies, 

thus depriving the court of jurisdiction over the claim. As a 

result, the PCRA court lacked jurisdiction to consider the merits 

of Appellant’s second PCRA petition, as it was untimely filed and 

no exception was proven.

Id. at 995-96 (quotation marks, footnote, and citations omitted). 

In the instant case, although Appellant invokes section 9545(b)(1)(iii) 

based on Alleyne, neither the United States Supreme Court nor our 
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Supreme Court has held that Alleyne applies retroactively to cases on 

collateral review. See id. at 995. “This is fatal to Appellant’s argument 

regarding the PCRA time-bar.” Id.4 After review, we conclude Appellant has 

not met his burden of proving his patently untimely petition fits within one of 

the three limited exceptions to the PCRA’s jurisdictional time-bar. See 

Jones, supra at 17.5 Accordingly, the PCRA court properly dismissed 

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4 We note for the sake of completeness that in Commonwealth v. Wolfe, 

106 A.3d 800 (Pa. Super. 2014), a case on direct appeal, a panel of this 

Court held section 9718 of the Sentencing Code unconstitutional in light of 

Alleyne, supra, and this Court’s decisions in Commonwealth v. Newman, 

99 A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v. Valentine, 

101 A.3d 801 (Pa. Super. 2014). See Wolfe, supra at 805-06. However, 

that decision has not been held to apply retroactively to cases on collateral 

review. 

5 To the extent that Appellant argues application of Alleyne pursuant to the 

“after discovered facts” exception to the time-bar set forth in section 

9545(b)(1)(ii), (see Appellant’s Brief, at 11), this argument also fails. Our 

Supreme Court, in Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011), 

expressly cautioned against confusing the concepts of “fact” and “law”, and 

rejected the notion that a law can be considered a newly-discovered fact 

capable of invoking the protections afforded by the PCRA’s after-discovered 

facts exception. See Watts, supra at 986-87 (holding that “subsequent 

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) 

of the PCRA”). Therefore, Appellant’s apparent assertion that publication of 

the Alleyne decision qualifies as a previously unknown fact triggering the 

timeliness exception set forth in section 9545(b)(1)(ii) fails.

We also note that the United States Supreme Court decided Alleyne

on June 17, 2013. Appellant filed the instant PCRA petition more than one 

year later, on August 5, 2014. Therefore, Appellant has failed to comply 

with the PCRA sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2). Appellant’s 

petition would fail for this reason as well.
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Appellant’s petition as untimely with no exception to the time-bar pleaded or 

proven.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015