J. A18022/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DOMINICK SERRATORE, : No. 1870 MDA 2015

:

 Appellant :

Appeal from the PCRA Order, September 30, 2015,

in the Court of Common Pleas of Luzerne County

Criminal Division at No. CP-40-CR-0000140-1987

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2016

Dominick Serratore appeals pro se from the September 30, 2015 

order denying his second petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”)1as untimely. After careful review, we affirm.

The underlying facts of this case were set forth by a prior panel of this 

court and need not be reiterated here. See Commonwealth v. Serratore, 

778 A.2d 738 (Pa.Super. 2001) (unpublished memorandum at 1-2), appeal 

denied, 788 A.2d 375 (Pa. 2001). On December 13, 1986, appellant was 

charged with first-degree murder, kidnapping, unlawful restraint, and 

 

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
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two counts each of criminal conspiracy and aggravated assault.2 Following a 

lengthy jury trial, appellant was found guilty on all counts on October 14, 

1987. On October 15, 1987, the trial court sentenced appellant to life 

imprisonment on the first-degree murder charge following a penalty-phase 

hearing. Thereafter, on December 18, 1992, appellant was sentenced to a 

consecutive term of 71⁄2 to 15 years’ imprisonment on the remaining counts. 

Appellant filed a timely notice of appeal on January 11, 1993. On June 9, 

1994, a panel of this court affirmed appellant’s judgment of sentence, and 

our supreme court denied allowance of appeal on January 10, 1995. See 

Commonwealth v. Serratore, 648 A.2d 1237 (Pa.Super. 1994), appeal 

denied, 655 A.2d 513 (Pa. 1995).

On October 21, 1996, appellant filed a pro se PCRA petition. From 

1996 to 1998, four separate attorneys were appointed to represent appellant 

in this matter. On December 23, 1998, appellant’s counsel filed an amended 

PCRA petition on his behalf. Following a hearing, the PCRA court dismissed 

appellant’s petition on June 5, 2000. Appellant filed a timely notice of 

appeal. On April 26, 2001, a panel of this court affirmed the PCRA court’s 

June 5, 2000 order, and our supreme court denied allowance of appeal on 

October 17, 2001. See Commonwealth v. Serratore, 778 A.2d 738 

(Pa.Super. 2001), appeal denied, 788 A.2d 375 (Pa. 2001).

 

2 18 Pa.C.S.A. §§ 2501, 2901, 2902, 903, and 2702, respectively.
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On December 4, 2014, appellant filed the instant pro se PCRA 

petition, his second, alleging that his sentence of life imprisonment violated 

the Supreme Court’s mandate in Alleyne v. United States, U.S. , 

133 S. Ct. 2151 (2013).3 On February 11, 2015, the PCRA court provided 

appellant with notice, pursuant to Pa.R.Crim.P. 907(1), of its intention to 

dismiss his petition without a hearing. Thereafter, on September 30, 2015, 

the PCRA court dismissed appellant’s petition without a hearing. This timely 

appeal followed.4

The crux of appellant’s argument on appeal is that the PCRA court 

erred in denying his petition as untimely because his sentence of life 

imprisonment violated Alleyne and that this case should be applied 

retroactively. (Appellant’s brief at 4.)

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in 

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 

 

3

In Alleyne, the Supreme Court held that the Sixth Amendment requires 

that “[a]ny fact that, by law, increases the penalty for a crime is an 

‘element’ that must be submitted to the jury and found beyond a reasonable 

doubt.” Alleyne, 133 S.Ct. at 2155 (citation omitted). 

4 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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2014) (citations omitted). “This Court grants great deference to the findings 

of the PCRA court, and we will not disturb those findings merely because the 

record could support a contrary holding.” Commonwealth v. Alderman, 

811 A.2d 592, 594 (Pa.Super. 2002), appeal denied, 825 A.2d 1259 (Pa. 

2003) (citation omitted). In order to be eligible for PCRA relief, a defendant 

must plead and prove by a preponderance of the evidence that his conviction 

or sentence arose from one or more of the errors listed in 42 Pa.C.S.A. 

§ 9543(a)(2). Further, these issues must be neither previously litigated nor 

waived. 42 Pa.C.S.A. § 9543(a)(3). Lastly, we note that, “[a]lthough this 

Court is willing to liberally construe materials filed by a pro se litigant, 

pro se status confers no special benefit upon the appellant[.]” 

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (citation 

omitted).

Before we address the merits of appellant’s arguments, we must first 

consider the timeliness of appellant’s PCRA petition because it implicates the 

jurisdiction of this court and the PCRA court. Commonwealth v. Davis, 86 

A.3d 883, 887 (Pa.Super. 2014) (citation omitted). 

To be timely, a PCRA petition must be filed within 

one year of the date that the petitioner’s judgment 

of sentence became final, unless the petition alleges 

and the petitioner proves one or more of the 

following statutory 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 
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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).

We emphasize that it is the petitioner who 

bears the burden to allege and prove that one of the 

timeliness exceptions applies. In addition, a petition 

invoking any of the timeliness exceptions must be 

filed within 60 days of the date the claim first could 

have been presented. 42 Pa.C.S.[A.] § 9545(b)(2). 

Commonwealth v. Marshall, 947 A.2d 714, 719-720 (Pa. 2008) (some 

citations omitted). “[A]n 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.A. 

§ 9545] are met.” Lawson, 90 A.3d at 5 (footnote omitted).

Instantly, it is undisputed that appellant’s PCRA petition, filed on 

December 4, 2014, is patently untimely. See 42 Pa.C.S.A. § 9545(b)(3) 

(providing “a judgment becomes final at the conclusion of direct review, 

including discretionary review in the Supreme Court of the United States and 
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the Supreme Court of Pennsylvania, or at the expiration of time for seeking 

the review[]”). As a result, the PCRA court lacked jurisdiction to review 

appellant’s petition, unless appellant alleged and proved one of the statutory 

exceptions to the time bar, as set forth in Section 9545(b)(1).

Appellant avers that the Supreme Court’s decision in Alleyne

constitutes a newly-discovered fact that would invoke the protections 

afforded by Section 9545(b)(1)(ii). (Appellant’s brief at 6-9.) Appellant 

further posits that Alleyne announced a new constitutional right under 

Section 9545(b)(1)(iii) that applies retroactively. (Id. at 8, 16-17.) We 

disagree.

Contrary to appellant’s contention, this court has expressly rejected 

the notion that judicial decisions constitute newly-discovered facts that 

invoke the protections afforded by Section 9545(b)(1)(ii). See 

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (holding 

that a judicial determination 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). Furthermore, courts in this 

Commonwealth have recognized that Alleyne does not apply retroactively to 

cases on collateral review. See Commonwealth v. Washington, 2016 WL 

3909088, *3 (Pa. 2016) (holding that the Alleyne decision does not apply 

retroactively to collateral attacks upon mandatory minimum sentences 

advanced in PCRA proceedings); see also Commonwealth v. Riggle, 119 
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A.3d 1058, 1064 (Pa.Super. 2015) (stating that, “while this Court has held 

that Alleyne applies retroactively on direct appeal, we have declined to 

construe that decision as applying retroactively to cases during PCRA 

review”).

Additionally, even if appellant’s claim met the underlying requirements 

of Section 9545(b)(1), he still would not be entitled to any relief. Appellant 

has failed to demonstrate that he brought his exceptions to the PCRA 

time-bar within 60 days of the date the claim could have been presented, as 

required by Section 9545(b)(2). To fulfill the 60-day requirement, appellant 

needed to file his petition within 60 days from the date Alleyne was 

decided. See Brandon, 51 A.3d at 235 (concluding that, “the sixty-day 

period begins to run upon the date of the underlying judicial decision[,]” not 

the date appellant became aware of the decision). The Supreme Court’s 

decision in Alleyne was filed on June 17, 2013. Appellant filed his PCRA 

petition almost six months later on December 4, 2014. Thus, appellant’s 

petition is untimely on this basis as well.

Finally, appellant’s life without parole sentence for first-degree murder 

does not represent an Alleyne violation.

Accordingly, we discern no error on the part of the PCRA court in 

dismissing appellant’s PCRA petition as untimely. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2016