J-S52022-20 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL LEON HALEY SR.

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1003 EDA 2020

Appeal from the PCRA Order Entered January 22, 2020

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0002527-2004

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E. *

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 17, 2021

Michael Leon Haley Sr. (Appellant) appeals pro se from the order of the 

Lehigh County Court of Common Pleas dismissing without a hearing his Post 

Conviction Relief Act1 (PCRA) petition, his third. Appellant raises six issues 

for our review which we discuss infra. After careful review, we affirm.

The PCRA court summarized the facts and procedural history of this case 

as follows:

[Appellant] has appealed the dismissal of his third petition under 

the [PCRA]. His untimely petition attempts to relitigate his 

sentence under the three strikes law.

 

142 Pa.C.S. §§ 9541-9546.

* Former Justice specially assigned to the Superior Court.
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On March 7, 2005, a jury convicted [A]ppellant of Attempted 

Criminal Homicide (Serious Bodily Injury) (two counts), 

Aggravated Assault, Recklessly Endangering Another Person, and 

Terroristic Threats. He was also found guilty of Theft by Unlawful 

Taking and Unauthorized Use of a Vehicle.[2 A]ppellant caused 

life-threatening injuries to the victim, [ ] Krepich, which were 

described by Dr. [ ] Badellino as “multiple stabbing and slicing 

wounds, including lacerations of the arteries in her neck and the 

slicing of her esophagus.”

On April 8, 2005, the Honorable William H. Platt sentenced 

[A]ppellant to a total sentence of not less than twenty-five (25) 

years nor more than fifty (50) years in a state correctional 

institution. The judgment of sentence was affirmed by the 

Superior Court on September 15, 2006.[3] 

[A]ppellant filed his first PCRA petition on May 22, 2007. Counsel 

was appointed to represent him, and after a hearing, the petition 

was denied on June 26, 2009. The denial of that petition was 

affirmed by the Superior Court on March 19, [2010.4]

On August 18, 2014, [A]ppellant filed a pro se “Petition for Writ of 

Habeas Corpus” which this [c]ourt treated as [A]ppellant’s second 

petition under the PCRA. Following review of that petition, this 

[c]ourt provided notice to [A]ppellant pursuant to Pa.R.Crim.P. 

907(1) of our intention to dismiss the petition, and permitted him 

twenty (20) days to file a response. [A]ppellant filed a response 

which challenged the constitutionality of Section 42 Pa.C.S. § 

9542 (Scope of [PCRA] subchapter). On October 20, 2014, the 

petition was dismissed. [A]ppellant filed another appeal raising 

various challenges to his sentence, including that he was 

improperly sentenced as a “Three Strikes” offender. On July 21, 

 

2 18 Pa.C.S. §§ 2501(a), 2702, 2705, 2706(a)(1), 3921, 3928.

3 Commonwealth v. Haley, 2611 EDA 2005 (unpub. memo) (Pa. Super. 

2006).

4 Commonwealth v. Haley 2154 EDA 2009 (unpub. memo) (Pa. Super. 

2010).
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2015, the Superior Court affirmed the dismissal of his second 

PCRA petition.[5]

[A]ppellant filed this third PCRA petition on October 21, 2019. 

Appellant’s current theory contesting his sentence as a third strike 

offender is that the testimony presented at the sentencing hearing 

was “false, fraudulent and misleading.” While acknowledging that 

his petition is untimely, he contends that his petition falls within 

the “newly discovered facts” exception to the one year time

limitation. See 42 Pa.C.S. § 9545(b)(1)(ii). He alleges the “newly 

discovered fact[ ]” is information provided to him by a lawyer who 

formerly represented him when he was previously convicted of 

robbery. That conviction was used to enhance [A]ppellant’s 

current sentence. [A]ppellant does not explain why he could not 

locate that lawyer in 2005 when he was sentenced, or why he only 

began the hunt for him long after his judgment of sentence was 

affirmed, and his two (2) prior PCRA petitions were dismissed . . .

On December 12, 2019, this [c]ourt, pursuant to Pa.R.Crim.P. 

907(1), issued a notice of our intention to dismiss the PCRA 

petition. [A]ppellant filed a response with additional arguments 

regarding the time-bar and his sentencing claim. On January 22, 

2020, following review of [A]ppellant’s response, the PCRA 

petition was dismissed.

A Notice of Appeal was filed on February 14, 2020. Pursuant to 

this [c]ourt’s directive, [A]ppellant filed “Petitioner’s Concise 

Statement of the Errors Complained of On Appeal 1925(b)[.]” 

Commonwealth v. Haley, 2020 Pa. Dist. & Cnty. Dec. LEXIS 1464 (5/8/20).

Appellant raises six issues for our review:

1. The PCRA court erred as a matter of law in determining that 

[Appellant] failed to meet the exception under [42 Pa.C.S.] § 

9545(b)(ii) while [acknowledging] that [Appellant] exercised due 

diligence in locating Lee Mandell, [Esq.,] whose information 

establishes proof that the prosecutor and his witness lied in open 

court and reveals that the witness read falsely when testifying 

from the record at [Appellant’s] sentencing.

 

5 Commonwealth v. Haley 3522 EDA 2014 (unpub. memo) (Pa. Super. 

2015).
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2. PCRA court erred as a matter of law in erroneously determining 

that [Appellant’s] prior convictions meet the [statutory] 

definitions of [42 Pa.C.S. § 9714 [(]18 Pa.C.S. §3701(a)(1)(i)-

(iii)[)] when no classifications of these subsections were added to 

the prior convictions and the crimes of robbery were listed in those 

cases as “general” under the statute, which was enacted in 1972 

and contained these very subsections.

3. The PCRA court erred as a matter of law in erroneously 

determining that “[I]t is implausible that the prosecutor or witness 

would lie to the court when the court was provided with a copy of 

the record to review[ . . . ] the court was able to confirm the 

accuracy of the record on its own by examining the document 

while the testimony was being presented, and took judicial notice 

of the crimes charged and their grading[ . . . ]” when nothing in 

the certified records or sentencing transcripts support the PCRA 

court’s determinations.

4. The PCRA court erred as a matter of law in ignoring 

[Appellant’s] request to amend his PCRA petition to include a 

[Napue v. Illinois], 360 U.S. 264, 269 (1959) violation and the 

ineffective assistance of counsel for failing to object to the same 

when the newly discovered information verifies a [Napue] 

violation and counsel’s ineffectiveness.

5. The PCRA court erred as a matter of law in stating that 

[Appellant] “merely suggests” his never receiving a second strike 

sentence when [Appellant] submitted the entire certified records 

and other supporting documents verifying the fact that no second 

strike sentence under [42 Pa.C.S.] § 9714 was ever imposed by 

any court for his prior convictions, and, by these facts, [Appellant] 

proved the sentencing error to that court.

6. [The] PCRA court erred as a matter of law in failing to determine 

[Appellant’s] actually innocent of the application of [42 Pa.C.S. § 

9714(g)] in that [Appellant’s] prior convictions do not satisfy the 

statute’s requirements for imposition of a sentence under the 

statute.

Appellant’s Brief at 3, 7, 10, 15, 18, 20.
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The standard for review of PCRA petitions is well settled. “We must 

determine whether the PCRA court’s order is supported by the record and free 

of legal error. . . . [W]e apply a de novo standard to our review of the court’s 

legal conclusions.” Commonwealth v. Brensinger, 218 A.3d 440, 447 (Pa. 

Super 2019) (citation omitted). The Pennsylvania Supreme Court has 

previously stated:

Under 42 Pa.C.S. § 9545[ ] any PCRA petition, including a second 

or subsequent one, must be filed within one year of the date the 

judgment of sentence becomes final. This limitation is 

jurisdictional in nature. As we have previously explained, 

“jurisdictional time limits go to a court’s right or competency to 

adjudicate a controversy.” Jurisdictional time limitations are not 

subject to equitable exceptions and a court has no authority to 

extend them except as the statute permits. By placing strict time 

limitations on the process, it is clear that the Legislature intended 

that there be finality to the collateral review process.

This preference for finality, however, is tempered by the insertion 

of three exceptions to the one-year time limitation at subsections 

(b)(1)(i)-(i6ii). These exceptions extend the one-year time 

limitation under limited circumstances, reflecting that the 

Legislature also recognized that situations might arise when the 

one-year time limitation must yield. The exceptions are triggered 

by an event that occurs outside the control of the petitioner[.]

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (citations 

omitted). Appellant argues the “newly discovered facts” exception. As such, 

he must allege and prove “the facts upon which the claim [is] predicated were 

unknown and [ ] could not have been ascertained by the exercise of due 

diligence.” Brensinger, 218 A.3d at 448. This Court has defined “due 

diligence” as requiring a petitioner to “take reasonable steps to protect his 
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own interests.” See id. Before addressing the merits of Appellant’s claims, 

we must first address whether the petition is timely. Id. at 447.

Here, Appellant was sentenced on April 8, 2005, and this Court affirmed 

his judgment of sentence on September 15, 2006. Appellant did not seek 

allocator. Thus, under 42 Pa.C.S. § 9545(b)(3), his judgment of sentence 

became final at the expiration of his allocatur deadline, which was October 16, 

2006. Appellant then generally had one year, or until October 16, 2007, to 

file a PCRA petition. His initial pro se PCRA petition, filed on May 22, 2007, 

was filed within this period and was thus timely. 

Because the instant PCRA petition was filed on October 21, 2019, 

approximately 13 years after the one year filing period, the PCRA court lacked 

jurisdiction to review it, unless Appellant properly invoked one of the 

timeliness exceptions. We look to 42 Pa.C.S. § 9545(b)(1), which provides:

(b) Time for filing petition.

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition alleges

and the petitioner proves that . . .

(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 
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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)-(iii). 

Here, Appellant avers he had newly discovered evidence under 42 

Pa.C.S. § 9545(b)(1)(ii). Appellant argues that the PCRA court’s 

determination — that the “newly discovered” information provided by his 

former attorney, Lee Mandell, Esquire, “does not constitute an exception to

the PCRA time bar” — is not supported by the record. Appellant’s Brief at 3, 

citing Order, 1/22/20, at 2-3 n.5. Appellant posits that the crimes which the 

Commonwealth’s witness testified to were all nolle prossed and since his prior 

“charges were removals of monies from financial institutions[,]” they should 

not have been considered for purposes of enhancing his sentence as a “thirdstrike” offense. Appellant’s Brief at 3. Appellant accuses the Commonwealth 

of “[lying] in open court” in reference to the prior nolle prossed charges and 

implies the court’s enhancement of his sentence based on these charges 

violates Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super 2005) 

(stating a sentence cannot be enhanced for charges that were nolle prossed). 

The PCRA court found Appellant did not establish an exception to the time bar. 

We agree.

The Pennsylvania Supreme Court has held:

Specifically, we hold that the presumption that information which 

is of public record cannot be deemed “unknown” for purposes of 

subsection 9545(b)(1)(ii) does not apply to pro se prisoner 

petitioners. As discussed above, the application of the public 
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record presumption to pro se prisoners is contrary to the plain 

language of subsection 9545(b)(1)(ii) and was imposed without 

any apparent consideration of a pro se prisoner’s actual access to 

information of public record. We find nothing presented in the 

instant appeal to undermine the implicit conclusion we made in 

[Commonwealth v. Bennett], 930 A.2d 1264 (Pa. 2007),] that 

prisoners’ access to public records is distinctly compromised; 

indeed, there is much to support that conclusion. 

Accordingly, consistent with the statutory language, in 

determining whether a petitioner qualifies for the exception to the 

PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii), 

the PCRA court must first determine whether “the facts upon 

which the claim is predicated were unknown to the petitioner.” In 

some cases, this may require a hearing. After the PCRA court 

makes a determination as to the petitioner’s knowledge, it should 

then proceed to consider whether, if the facts were unknown to 

the petitioner, the facts could have been ascertained by the 

exercise of due diligence, including an assessment of the 

petitioner’s access to public records.

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017). 

Per Burton, we afford Appellant some latitude because he is pro se and 

incarcerated. Nevertheless we must determine whether “the facts could have 

been ascertained by the exercise of due diligence, including an assessment of 

the petitioner’s access to public records.” See Burton, 158 A.3d at 638. 

Appellant claims he learned of this “new information” through letters with prior 

counsel Attorney Mandell in February, April, and August of 2019. Appellant’s 

PCRA Petition Appendix, 10/21/19, Exhibits B-E. However, a reading of those 

exhibits confirms the PCRA court’s determination that Attorney Mandell only 

informed Appellant of information in Appellant’s own criminal record. See id. 

While Appellant’s criminal records are public record, this information could 

have been ascertained much sooner using due diligence even considering 
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Appellant’s limited access to public records. See Burton, 158 A.3d at 638. 

Moreover, we must note the obvious: Appellant knew of his prior arrest record 

and convictions having been present at the prior crimes and subsequent 

criminal prosecutions, convictions, and sentencings.

The gravamen of Appellant’s claim, setting aside his complaints as to 

how the PCRA court handled the present petition, is that he should not have 

been subject to a “three strikes” sentence. See Appellant’s Brief at 7-10, 10-

15, 18-20, 20-21B.6 Further, he raised the propriety of the “three strikes” 

sentence in his initial 2007 PCRA petition. See Haley, 2154 EDA 2009 

(unpub. memo at 2) (“Was the imposition of the three strike sentence 

appropriate and was counsel’s failure to object to the sentence ineffective?”). 

An issue is previously litigated if the highest appellate court in which the 

petitioner has review as of right has ruled on its merits, or if it has been raised 

and decided in a collateral attack to the conviction or sentence. See 42 

Pa.C.S. § 9544(a)(2), (3). A prior panel of this Court considered Appellant’s 

initial PCRA petition and adopted the PCRA court’s opinion. In doing so, they 

considered the merits of this same argument. Thus, this issue was previously 

litigated and cannot form a basis for relief. See 42 Pa.C.S. § 9543(a)(3) (“To 

be eligible for relief under [the PCRA], the petitioner must plead and prove by 

 

6 For the most part, Appellant’s brief is paginated appropriately and in a 

standard manner; however, it contains a page 21 and a page 21B.
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a preponderance of the evidence . . . [t]hat the allegation of error has not 

been previously litigated or waived.”).

The PCRA court opinion adopted by the prior panel noted that the 

Commonwealth provided adequate notice prior to sentencing that it would 

seek a “three strikes” sentence. PCRA Ct. Op., 6/26/09, at 19-24. The PCRA 

court also observed that during sentencing, defense counsel used crossexamination and argument to question whether Appellant’s prior robbery 

convictions could properly serve as predicate convictions under the three 

strikes statute. Id. at 23. In a footnote, the PCRA court explained why 

Appellant’s prior convictions were proper three-strikes predicates, since they 

are felony-one robbery convictions meeting the requirements under 18 

Pa.C.S. § 3701(a)(1)(i)-(iii). Id. at 24 n.23.7 The PCRA court was satisfied 

that the Commonwealth established the propriety of application of a threestrikes sentence, including providing Appellant with a copy of the record of his 

previous convictions. Id. at 20. Thus, the “newly discovered” information 

Appellant acquired from Attorney Mandell was available both prior to and 

during his sentencing hearing. In fact, given that Appellant’s sentencing 

counsel mounted a challenge to the propriety of a three-strikes sentence, it is 

obvious that Appellant knew at sentencing that his criminal record would be 

 

7 The PCRA court inadvertently cited “42 Pa.C.S. § 3701” in its footnote, but 

it is plain from the context that the court was referring to the robbery statute, 

18 Pa.C.S. § 3701.
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used to determine the length of his sentence, including the three-strike 

requirement. 

Next, we address issues two, five, and six together as they all are 

brought under 42 Pa.C.S. § 9714, which states in relevant part:

(a) Mandatory sentence . . .

* * *

(2) Where the person had at the time of the commission 

of the current offense previously been convicted of two or 

more such crimes of violence arising from separate criminal 

transactions, the person shall be sentenced to a minimum 

sentence of at least 25 years of total confinement, 

notwithstanding any other provision of this title or other 

statute to the contrary. Proof that the offender received 

notice of or otherwise knew or should have known of the 

penalties under this paragraph shall not be required. Upon 

conviction for a third or subsequent crime of violence the 

court may, if it determines that 25 years of total confinement 

is insufficient to protect the public safety, sentence the 

offender to life imprisonment without parole . . .

* * *

(g) Definition. As used in this section, the term “crime of 

violence” means . . . robbery as defined in 18 Pa.C.S. § 

3701(a)(1)(i), (ii) or (iii) (relating to robbery)[.] 

42 Pa.C.S. § 9714(a)(2), (g). Appellant argues the current language of the 

statute should be applied to his two prior robbery convictions, rendering them 

outside the scope of qualifying crimes of violence under 42 Pa.C.S. § 9714(g). 

He argues the language of 18 Pa.C.S. § 3701 was amended prior to 2010, 

citing Commonwealth v. Guilford, 861 A.2d 365 (Pa. Super. 2004), and 

Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2004). Appellant’s Brief at 
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7-8. Appellant argues his third-strike offense under Section 9714 is improper 

because he was never given any second-strike sentence. Id. at 18. Appellant 

further argues he is “innocent of . . . a third strike term” because his prior two 

robbery convictions “[do] not allow for his being sentenced as a third strike 

offender[.]” Id. at 20-21.

After review of Guilford, Shiffler, and the relevant statutes, it is clear 

Appellant has misapplied the law and is entitled to no relief. The language of 

Section 3701 was not amended until 2010 and, in relevant part, remains the 

same today. See 18 Pa.C.S. § 3701; 18 Pa.C.S. § 3701 (effective May 17, 

2010 to February 20, 2014); 18 Pa.C.S. § 3701 (effective June 6, 1973 to May 

16, 2010). At the time of Appellant’s conviction, Section 3701 did not have a 

separate subsection for the robbery of financial institutions as it does 

presently. Appellant was convicted of robberies, graded felonies of the first 

degree in 1988 and again in 1995. N.T. Sentencing, 4/8/05, at 8-10. This 

Court does not have the authority to change convictions retroactively as 

statutes are updated. To do so would invite chaos into our legal system. The 

1988 and 1995 robbery convictions are applicable and constitute prior 

“strikes” under Section 9714. See 42 Pa.C.S. § 9714(g). There is no 

requirement that Appellant be informed of his prior strikes or that his prior 

convictions were strikes for the purposes of Section 9714. See 42 Pa.C.S. § 

9714(a)(2). 
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We do not address Appellant’s claims that the PCRA court “erroneously 

[determined] that it is implausible that the prosecutor or witness would lie[,]” 

or his claim that the court erred when it “ignor[ed Appellant’s] request to 

amend his PCRA petition to include a [Napue] . . . violation[.]” See 

Appellant’s Brief at 10, 15. As with Appellant’s first issue, these claims are 

untimely and as such, no relief will be granted. See 42 Pa.C.S. § 9545(b)(1). 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2021