J-S05025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NORMAN PELKEY,

Appellant No. 881 MDA 2015

Appeal from the PCRA Order April 22, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003650-2006

BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,*JJ.

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

Appellant, Norman Pelkey, appeals pro se from the order denying his 

fourth petition for relief filed pursuant to the Post Conviction Relief Act 

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

The PCRA court summarized the history of this case as follows:

(Appellant) was charged with Rape by Forcible Compulsion, 

Sexual Assault, Indecent Assault without Consent of Other, 

Indecent Assault by Forcible Compulsion, Indecent Assault –

Person Less than 13, Indecent Exposure, Corruption of Minors, 

and Rape of a Child.

Petitioner pled guilty before the [trial court] on September 

12, 2007 to Rape by Forcible Compulsion, Sexual Assault, 

Indecent Assault without Consent of Other, Indecent Assault by 

Forcible Compulsion, Indecent Assault – Person Less than 13, 

Indecent Exposure, and Corruption of Minors. The charge of 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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Rape of a Child was withdrawn. Petitioner was evaluated by the 

Sexual Offender Assessment Board in accordance with Megan’s 

Law, and sentenced thereafter on December 6, 2007 to an 

aggregate term of incarceration of 5 to 10 years.

On December 10, 2008 Petitioner filed a pro se check-thebox motion for Post Conviction Collateral Relief, and was 

appointed . . . . PCRA counsel[,] Osmer Deming, Esquire. 

Attorney Deming moved for a court order applying 555 days of 

credit time to Petitioner’s sentence. The motion was granted on 

February 5, 2009: the requested credit time was applied and an 

amended sentencing order was filed. Because the relief sought 

in the PCRA Motion (the 555 days of credit time) had been 

granted, the PCRA was deemed moot and Attorney Deming was 

permitted to withdraw from the case. 

On March 10, 2011, Petitioner filed a second, pro se checkthe-box form motion for Post Conviction Collateral Relief. [The 

PCRA court] appointed Lara Glenn Hoffert, Esquire as PCRA 

Counsel to represent Petitioner in the disposition of this PCRA 

petition. PCRA Counsel reviewed the entire record and 

concluded that the petition was facially untimely and that there 

were no applicable exceptions to the timeliness requirement. 

Accordingly, PCRA counsel filed a “No Merit” Letter pursuant to 

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

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

court] reviewed the record and likewise concluded that the 

petition was untimely. 

Rather than appealing the denial of the dismissal, on 

July 9, 2012, Petitioner filed a third pro se PCRA petition. This 

third PCRA petition was facially untimely, and Petitioner failed to 

demonstrate that any of the statutory exceptions to the one year 

filing deadline applied. Accordingly, on August 15, 2012 [the 

PCRA court] dismissed Petitioner’s third PCRA petition. 

Petitioner appealed the dismissal. On April 12, 2013, the 

Superior Court ruled that we properly dismissed Petitioner’s third 

[petition] as untimely and affirmed the dismissal. Thereafter, 

Petitioner’s [Petition] for Allowance of Appeal to the 

Pennsylvania Supreme Court was denied.

On January 9, 2014 Petitioner filed his fourth pro se PCRA 

petition . . . , which was also dismissed as untimely. 
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Trial Court Opinion, 7/13/15, at 1-2 (footnotes omitted). 

Appellant timely appealed. Appellant was directed to file a Pa.R.A.P. 

1925(b) statement. Instead, Appellant filed a “Notice of Record to Lower 

Courts To Berks County Court House to Over Turn My Case,” dated June 16, 

2015. The PCRA court treated this pleading as Appellant’s Pa.R.A.P. 1925(b) 

statement and addressed the issues Appellant raised therein in the court’s 

opinion pursuant to Pa.R.A.P. 1925(a).

Appellant presents the following issues for our review, which we 

reproduce verbatim:

I.) Trial counsel was ineffective for failing to produce 

witnesses and for giving faulty legal advice that witnesses would 

not be any help.

II.) Trial counsel failed to produce discovery at eve of trial and 

did not take time to investigate the case.

III.) Appellant was not permitted to be in the Courtroom at trial 

when the Victim was present and was unable to have her 

properly questioned.

IV.) Appellant’s right to a jury trial and a determination of guilt 

beyond a reasonable doubt by that jury, guaranteed by Article I 

Section 9 of the PA Constitution, and the 6th Amendment to U.S. 

Constitution, had been violated, the Appellant was sentenced to 

a mandatory minimum sentence, the mandatory minimum 

statute allows the trial judge (not a jury) to determine by the 

perponderance of the evidence if the statute is applicable, the 

sentence is unconstitutional, pursuant to Alleyne, Apprendi and 

Newman. 

Appellant’s Brief at 7. 

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 
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court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

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 the court may not 

ignore it in order to reach the merits of the petition. Commonwealth v. 

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v. 

Murray, 753 A.2d 201, 203 (Pa. 2000)). 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).

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), 
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and (iii), is met.1 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). Carr, 768 A.2d at 1167.

Our review of the record reflects that the PCRA court re-sentenced 

Appellant on February 5, 2009, after his first PCRA petition was granted, and

Appellant was credited for time served. Appellant did not file a direct appeal 

from that decision.

____________________________________________

1

 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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Accordingly, Appellant’s judgment of sentence became final on 

March 9, 2009,2thirty days after imposition of Appellant’s re-sentencing on 

February 5, 2009, when the time allowed for filing a direct appeal expired. 

42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903; Pa.R.Crim.P. 720(A)(2); 

Commonwealth v. Green, 862 A.2d 613, 618-619 (Pa. Super. 2004). 

Therefore, Appellant had to file this PCRA petition by March 9, 2010, in order 

for it to be timely. Appellant did not file the instant PCRA petition, his 

fourth, until January 9, 2014. Thus, Appellant’s 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). 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). 

In this case, Appellant appears to be invoking the time-bar exception 

under section 9545(b)(1)(iii). Appellant maintains that “his sentence is 

illegal and needs to be corrected pursuant to Apprendi, Alleyne and 

____________________________________________

2

 We note that because March 7, 2009, fell on a Saturday, Appellant had 

until Monday, March 9, 2009, to file his notice of appeal. See 1 Pa.C.S. 

§ 1908 (stating that, for computations of time, whenever the last day of any 

such period shall fall on Saturday or Sunday, or a legal holiday, such day 

shall be omitted from the computation.); Commonwealth v. Green, 862 

A.2d 613, 618 (Pa. Super. 2004).
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Newman.” Appellant’s pro se Brief at 28. Thus, Appellant’s argument may 

be characterized as an attempt to assert the “new constitutional right” 

exception to the PCRA time-bar based on Apprendi v. New Jersey, 530 

U.S. 466, 120 S.Ct. 2348 (2000); Alleyne v. United States, 133 S.Ct. 

2151 (2013); and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014). 

This Court has explained the rulings and impact of the cases 

referenced by Appellant as follows:

In Alleyne, the Supreme Court held that the constitutional jury 

trial right requires any fact, other than a prior conviction, that 

triggers a mandatory minimum sentence to be proven beyond a 

reasonable doubt before the finder of fact. Alleyne is an 

application of the Court’s prior pronouncement in Apprendi v. 

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 

(2000), which ruled that any fact that increases a maximum 

sentence must be found by the factfinder beyond a reasonable 

doubt or admitted by the defendant during his guilty plea. In 

Alleyne, the United States Supreme Court expressly overruled 

Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 

L.Ed.2d 524 (2002), which held that a fact that involves a 

mandatory minimum sentence does not implicate jury trial 

rights. Alleyne also implicitly abrogated McMillan v. 

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 

(1986), which withstood an Apprendi attack in the Harris 

decision.

In Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super.2014) (relying upon Commonwealth v. Watley, 81 

A.3d 108, 118 (Pa.Super.2013) (en banc)), we noted that 

Alleyne will be applied to cases pending on direct appeal when 

Alleyne was issued. 

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015) 

(emphasis added). 
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While this Court has held that Alleyne applies retroactively to cases 

that were on direct appeal when Alleyne was issued, we have declined to 

construe that decision as applying retroactively to cases during PCRA review. 

In concluding Alleyne does not satisfy the new retroactive 

constitutional right exception to the PCRA’s one year time bar, 

42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller, 

102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:

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.

Id. at 995 (citations omitted) (emphasis supplied). 

Commonwealth v. Ruiz, _ A.3d. _, 2015 PA Super 275 at 3 (Pa. 

Super. Dec. 30, 2015) (emphasis in original).

Alleyne was decided on June 17, 2013. As noted, Appellant’s 

judgment of sentence was finalized years before Alleyne was decided. 

Additionally, we note that although a challenge based on Alleyne does 

implicate the legality of a sentence, “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.” Miller, 102 A.3d at 995-996. Thus, 

the PCRA court properly dismissed Appellant’s instant PCRA petition as 

untimely. It was filed beyond the one-year general deadline and Appellant 
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cannot rely on Alleyne or its progeny to invoke the timeliness exception at 

section 9545(b)(1)(iii). 

Consequently, because the PCRA petition was untimely and no 

exceptions apply, the PCRA court 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: 3/28/2016