J-S12017-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SIMEON SPENCE,

Appellant No. 2670 EDA 2015

Appeal from the PCRA Order of August 7, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0009338-2009

BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 01, 2016

Appellant, Simeon Spence, appeals from the order entered on August 

7, 2015, dismissing his second petition filed pursuant to the Post Conviction 

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

On January 27, 2011, a jury convicted Appellant of corrupt 

organizations, conspiracy to commit corrupt organizations, two counts of 

possession with intent to deliver (PWID), criminal conspiracy to violate the 

Controlled Substance, Drug, Device and Cosmetic Act, criminal attempt to 

commit PWID, two counts of possession, and three counts of criminal use of 

communications facility.1 Thereafter, on April 19, 2011, the PCRA court 

____________________________________________

1 18 Pa.C.S.A. §§ 911(b)(2), 911(b)(4), 35 P.S. § 780-113(a)(30), 18 

Pa.C.S.A. § 903 & 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 901 & 35 P.S. 

§ 780-113(a)(30), 35 Pa.C.S.A. § 780-113(a)(16), and 18 Pa.C.S.A. § 7512.

 
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sentenced Appellant to an aggregate term of eight to 19 years’ 

imprisonment. Appellant’s sentence included two mandatory minimum 

terms of incarceration based upon drug quantities.

The pertinent facts and procedural history have been summarized as 

follows:

[Appellant’s] convictions arose from his involvement in a 

cocaine trafficking ring in Norristown, Pennsylvania, which 

was headed by Dontay Brewer, and which stored a large 

quantity of drugs at Craig Cole’s house. [Appellant] was 

characterized as a street-level drug dealer. [Appellant] 

appealed his judgment of sentence, which was affirmed on 

May 24, 2012, and his petition for allowance of appeal was 

denied on January 10, 2013. Commonwealth v. 

Spence, 50 A.3d 250 (Pa. Super. 2012) (unpublished 

memorandum), appeal denied, 62 A.3d 379 (Pa. 2013).

On April 10, 2013, [Appellant] filed a pro se PCRA petition, 

raising multiple issues relating to the sufficiency of the 

evidence, trial court error regarding jury instructions, and 

the denial of effective assistance of counsel. [C]ourt 

appointed counsel [] subsequently filed a petition to 

withdraw, [including] therein a no-merit letter under 

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

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc). . . . The no-merit letter, dated August 

16, 2013, detailed why the issues in [Appellant’s] pro se

petition were entirely without merit. The PCRA court 

granted counsel’s motion to withdraw and entered a 

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

without a hearing on August 22, 2013.

[Appellant] then filed a pro se response on August 28, 

2013, alleging that PCRA counsel never contacted him to 

discuss the claims made in the petition and never provided 

him with a copy of the “no-merit” letter and motion to 

withdraw. On September 3, 2013, the PCRA court 

dismissed [Appellant’s] petition[.]
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Commonwealth v. Spence, 121 A.3d 1138 (Pa. Super. 2015) (unpublished 

memorandum) at 1-3.

Appellant filed a timely pro se appeal from the order denying his first 

PCRA petition. On March 16, 2014, Appellant filed an “Application to 

Remand Pursuant to Pa.R.A.P. 123,” requesting that we remand the matter 

based upon an exculpatory sworn statement made by his co-defendant, 

Dontay Brewer. This Court affirmed the order denying post-conviction relief 

on April 22, 2015. Because a panel of this Court found that Appellant’s 

PCRA petition was denied properly by the PCRA court, we denied “his 

request to remand the matter without prejudice to raise this issue in a PCRA 

petition should he choose.” Spence, 121 A.3d 1138 (unpublished 

memorandum) at 14-15, citing Commonwealth v. Lark, 746 A.2d 585, 

588 (Pa. 2000).

Appellant filed the counseled PCRA petition at issue on June 19, 2015. 

Within this petition, Appellant not only raised his claim of the “newly 

discovered” Brewer affidavit, but also asserted that Alleyne v. U.S., 113 

S.Ct. 2151 (2013) adopted a new constitutional right that rendered his 

mandatory minimum sentences illegal. On June 24, 2015, the PCRA court 

issued a Pa.R.A.P. 907 notice of its intent to dismiss Appellant’s second 

petition without a hearing because it was untimely filed and because 

Appellant failed to prove any exception to the PCRA’s time bar. This appeal 

followed. Both Appellant and the PCRA Court have complied with Pa.R.A.P. 

1925.
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Appellant raises the following issues:

I. Did the [PCRA] court violate Appellant’s 

constitutional rights under the Fifth, Sixth and 

Fourteenth Amendments by dismissing Appellant’s 

new evidence petition as untimely and not 

conducting a hearing on its’ merits?

II. Did the [PCRA] court violate Appellant’s 

constitutional right to due process of law by finding 

that his claim premised upon a newly recognized 

right set forth in Alleyne v. U.S., 133 S.Ct 2151 

(2013) was not applicable to him because he was on 

collateral appeal when it was decided?

Appellant’s Brief at 4.

Our scope and standard of review is well-settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record of 

the PCRA court's hearing, viewed in the light most favorable 

to the prevailing party. Because most PCRA appeals involve 

questions of fact and law, we employ a mixed standard of 

review. We defer to the PCRA court's factual findings and 

credibility determinations supported by the record. In 

contrast, we review the PCRA court's legal conclusions de 

novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted).

In order to address Appellant’s issues, we must first determine 

whether the PCRA court correctly determined that Appellant’s second PCRA 

petition was untimely filed. This Court’s standard of review regarding an 

order dismissing a petition under the PCRA is whether the determination of 

the PCRA court is supported by the evidence of record and is free of legal 
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error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The 

PCRA court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). 

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a 

petition for relief under the PCRA, including a second or subsequent petition, 

must be filed within one year of the date the judgment is final unless the 

petition alleges, and the petitioner proves, that an exception to the time for 

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and 

(iii), is met.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 

____________________________________________

2 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).

 
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(Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these 

statutory exceptions must “be filed within 60 days of the date the claims 

could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).

Appellant’s judgment of sentence became final on April 10, 2013, 

when the ninety-day time period for filing a writ of certiorari with the United 

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); 

U.S.Sup.Ct.R. 13. Therefore, Appellant needed to file the PCRA petition at 

issue by April 10, 2014, in order for it to be timely. As Appellant filed the 

instant petition on June 19, 2015, it is untimely unless he has satisfied his 

burden of pleading and proving that one of the enumerated exceptions 

applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 

1999).

As this Court recently has summarized:

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the 

facts upon which he based his petition and could not have 

learned those facts by the exercise of due diligence. Due 

diligence demands that the petitioner take reasonable 

steps to protect his own interests. A petitioner must 

explain why he could not have learned the new fact(s) 

earlier with the exercise of due diligence. This rule is 

strictly enforced. Additionally, the focus of the exception is 

focused on the newly discovered facts, not a newly 

discovered or newly willing source for previously known 

facts.

The timeliness exception set forth at Section 9545(b)(1)(ii) 

has often mistakenly been referred to as the “afterdiscovered evidence” exception. This shorthand reference 
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was a misnomer, since the plain language of subsection 

(b)(1)(ii) does not require the petitioner to allege and 

prove a claim of “after discovered evidence.” Rather, as 

an initial jurisdictional threshold, Section 9545(b)(1)(ii) 

requires a petitioner to allege and prove that there were 

facts unknown to him and that he exercised due diligence 

in discovering those facts. See 42 Pa.C.S.A. 

§ 9545(b)(1)(ii). Once jurisdiction is established, a PCRA 

petitioner can present a substantive after-discoveredevidence claim. See Pa.C.S.A. § 9543(a)(2)(vi) 

(explaining that to be eligible for relief under PCRA, 

petitioner must plead and prove by preponderance of the 

evidence that conviction or sentence resulted from, inter 

alia, unavailability at the time of trial of exculpatory 

evidence that has subsequently become available and 

would have changed the outcome of the trial if it had been 

introduced). In other words, the “new facts” exception at 

Subsection (b)(1)(ii) has two components, which must be 

alleged and proved. Namely, the petitioner must establish 

that: 1) the facts upon which the claim was predicated 

were unknown and 2) could not have been ascertained by 

the exercise of due diligence. If the petitioner alleges 

and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

Thus the “new facts” exception at Section 9545(b)(1)(ii) 

does not require any merits analysis of an underlying 

after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) 

(internal quotation marks, citations and footnote omitted).

Initially, we note that, because Appellant filed his second PCRA petition 

within 60 days of this Court’s affirming the denial of his first PCRA petition, 

he has met the requirement set forth in 42 Pa.C.S.A. § 9545(b)(2). See 

Lark, supra. Thus, we consider whether Mr. Brewer’s affidavit satisfies the 

prerequisites of Section 9545(b)(1)(ii). According to Mr. Brewer’s initial 

affidavit:
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[Appellant] never purchased or brought [sic] any illegal 

and/or controlled substance from me at no point in time. 

I am willing and available to testify to the above admission 

and that me and [Appellant] were only friends who 

occasionally hung out from time to time after hours.

Affidavit of Admission, 1/28/14, at 1.3

The PCRA court found that Mr. Brewer’s affidavits did not establish the 

PCRA’s time bar exception found at Section 9545(b)(1)(ii):

Based upon [these affidavits], th[e PCRA c]ourt concluded 

that Appellant failed to establish that the allegedly [new 

facts] constituted [information] that was not available 

previously. Brewer maintains that Appellant and he had a 

relationship of sorts, [] which did not include the buying or 

selling of illegal drugs. In addition, Brewer admits that 

they used the jargon “48th Street” that wiretap 

investigation picked up on, but that it did not mean what 

the Commonwealth’s expert testified to, namely a 

particular weight of drugs, but rather to an after-hours 

bar. Because Appellant was present for their 

communication where 48th Street was used, he presumably 

was aware at the time of trial that it did not refer to drugs, 

but rather to an after-hours bar. Also at the time of trial, 

Appellant would have also known the nature of his 

relationship with Brewer, i.e., that it allegedly did not 

involve the buying or selling of drugs. Accordingly, 

Appellant knew all of the facts that he now alleges 

[establish jurisdiction under 42 Pa.C.S.A. § 9545(b)(1)(ii)]. 

The Brewer affidavits are only new in that they represent a 

____________________________________________

3

In his supplemental affidavit, Mr. Brewer further explained his relationship 

with Appellant and stated that the term “48th Street” as viewed in 

intercepted texts actually referred to the location of an after-hours club. Mr. 

Brewer also averred that he wrote to Appellant regarding this information on 

several occasions prior to his 2014 affidavit, but that Appellant never 

received them. See Affidavit, 7/9/15, at 1-3.

 
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new willing source for previously known facts, which does 

not qualify[.]

PCRA Court Opinion, 10/2/15, at 9. Our review of the record and pertinent 

case law supports the PCRA court’s conclusion that Appellant’s 

“newly-discovered” facts claim fails because, at best, Mr. Brewer is “a newly 

discovered or newly willing source for previously known facts.”4 Brown, 

111 A.3d at 176. For these reasons, Appellant’s efforts to establish 

jurisdiction based upon Mr. Brewer’s affidavit fail.

Appellant next argues that “he should be found to be entitled to 

retroactive application of Alleyne v. U.S., 133 S.Ct. 2151 (2013), in that he 

was on collateral appeal at the time that it was issued and he would 

otherwise be entitled to relief.” Appellant’s Brief at 8. We cannot agree.

In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this 

Court held that the PCRA court lacked jurisdiction to consider an Alleyne

argument presented in a second PCRA petition filed five years after the 

petitioner’s judgment of sentence became final, reasoning:

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4 The record developed at Appellant’s trial confirms our conclusion that 

Appellant was previously aware of the information contained in Mr. Brewer’s 

affidavit. When arguing a motion to sever Appellant’s case from Mr. 

Brewer’s criminal trial, defense counsel asserted that Appellant was “only a 

minor player” in the drug trafficking operation and that he believed that by 

severing the trial, “a jury would be better able to focus on the evidence 

directly related to Appellant only.” See Trial Court Opinion, 7/15/11, at 6. 

Thus, Appellant’s claim that he was unaware of his own involvement in the 

illegal operation lacks merit. As such, Appellant’s reliance upon 

Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2014) (en banc) as 

grounds to support his entitlement to an evidentiary hearing is inapposite. 
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Subsection (iii) of Section 9545[(b)(1)] 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 [the Supreme Court of 

Pennsylvania] 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. 

***

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. 

Miller, 102 A.3d at 994-995. (citations omitted).

Like the petitioner in Miller, Appellant raised his Alleyne claim more 

than two years after his judgment of sentence became final. Moreover, as 

stated above in Miller, neither our Supreme Court nor the United States 

Supreme Court has held that the constitutional right recognized in Alleyne 

applies retroactively. See also Commonwealth v. Riggle, 119 A.3d 1058, 
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1067 (Pa. Super. 2015) (holding that, “Alleyne is not entitled to retroactive 

effect in [the] PCRA setting.”) Finally, we conclude that Lark, supra, has 

no impact on Appellant’s eligibility to benefit from Alleyne because Alleyne 

was issued approximately two months after Appellant’s judgment of 

sentence became final. Thus, although Alleyne implicates the legality of 

Appellant’s sentence, the PCRA court correctly concluded that it lacked 

jurisdiction to address this issue. See Miller, supra.

5

In sum, the PCRA court correctly concluded that Appellant failed to 

establish any exception to the PCRA’s time-bar. The PCRA court therefore 

properly dismissed Appellant’s second PCRA petition as untimely filed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2016

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5 Appellant’s reliance upon our decision in Commonwealth v. Newman, 99 

A.3d 86 (Pa. Super. 2014) (en banc), as well as our unpublished 

memorandum in Commonwealth v. Dennis, 106 A.3d 178 (Pa. Super. 

2014), is inapposite because both cases involved direct appeals rather than 

post-conviction challenges to judgments of sentence that had already 

become final.