J-S27012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DOMINIC NAPLES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3649 EDA 2016

Appeal from the PCRA Order October 19, 2016

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

No(s): CP-51-CR-0701681-2001, 

CP-51-CR-0706161-2001, CP-51-CR-0712461-2001, 

CP-51-CR-0906271-2001

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.: FILED JULY 19, 2018

Appellant, Dominic Naples, appeals pro se from the order denying his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541–9546. We affirm.

In Appellant’s direct appeal nunc pro tunc, we summarized the initial 

procedural history:

On July 10, 2001, Appellant entered an open plea of nolo 

contendere in the matter designated CP 0011-0832, on the charge 

of Arson.[1] On October 3, 2001, he also entered a plea of nolo 

contendere in the matter designated [CP 51-CR-0701681-2001, 

CP-51-CR-0706161-2001] to two counts of Aggravated Assault, 

Escape, and Burglary. Finally, on April 16, Appellant entered an 

Open Guilty Plea in the matter designated [CP-51-CR-0712461-

____________________________________________

1

 The direct appeal nunc pro tunc encompassed Appellant’s plea to arson. 

The arson charge is not at issue in Appellant’s current PCRA petition. 

Commonwealth Brief at 2.
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2001] and [CP-51-CR-0906271-2001], to Rape, Attempted Rape, 

two counts of Involuntary Deviate Sexual Intercourse [(“IDSI”)], 

two counts of Corrupting of the Morals of a Minor and Kidnapping. 

Following an evaluation by the Sexual Offenders Assessment 

Board . . . , it was determined that Appellant did not meet the 

criteria to be classified as a Sexually Violent Predator . . . , and on 

August 20, 2002, Appellant was sentenced . . . to an aggregate 

term of twenty-two (22) to forty-five (45) years of incarceration.

Commonwealth v. Naples, 931 A.2d 50, 1983 EDA 2005 (Pa. Super. 2007) 

(unpublished memorandum at 1–2). Appellant did not file a direct appeal. On 

July 1, 2003, he filed his first PCRA petition. Appointed counsel filed an

Amended Petition and a Supplemental Amended Petition, following which the 

PCRA court granted Appellant’s request to reinstate his post-sentence rights

nunc pro tunc on February 10, 2005. Appellant filed post-sentence motions 

nunc pro tunc, which were denied, followed by a notice of appeal nunc pro 

tunc. We affirmed Appellant’s judgment of sentence on June 13, 2007, and 

our Supreme Court denied further review on December 18, 2007. Id., appeal 

denied, Commonwealth v. Naples, 939 A.2d 890, 329 EAL 2007 (Pa. 2007).

Appellant timely filed a PCRA petition on July 16, 2008.2 The PCRA court 

appointed counsel, who filed amended and supplemental amended PCRA 

petitions. Following an evidentiary hearing, the PCRA court dismissed 

____________________________________________

2

 Because Appellant’s first PCRA petition resulted in the restoration of his 

direct appeal rights, the second PCRA petition properly was treated as his first 

petition. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 

2013) (“[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc 

pro tunc in his first PCRA petition, a subsequent PCRA petition will be 

considered a first PCRA petition for timeliness purposes.”).
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Appellant’s PCRA petition on June 8, 2012. Appellant filed a timely appeal to 

this Court. We affirmed the dismissal of Appellant’s PCRA petition on 

September 24, 2013, and our Supreme Court denied further review. 

Commonwealth v. Naples, 87 A.3d 390, 1842 EDA 2012 (Pa. Super. 2013) 

(unpublished memorandum), appeal dismissed, Commonwealth v. Naples, 

92 A.3d 811, 640 EAL 2013 (Pa. 2014).

Appellant filed the instant pro se PCRA petition, effectively his second, 

on July 14, 2014. He filed a pro se supplemental petition on March 18, 2015, 

and after obtaining leave of court, a pro se supplemental amended petition on 

March 1, 2016. Inexplicably, the PCRA court appointed counsel,3 who 

ultimately filed, on July 28, 2016, a petition to withdraw as counsel and a nomerit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

banc). The PCRA court agreed with counsel that the PCRA petition was 

untimely and no exceptions applied and issued a notice of intent to dismiss 

the petition without a hearing pursuant to Pa.R.Crim.P. 907. Order, 9/19/16. 

____________________________________________

3

 Counsel need not have been appointed in this second PCRA proceeding, as 

this is not a first-time petition in which Appellant has a rule-based right to 

counsel. See Pa.R.Crim.P. 904(C) (“[T]he judge shall appoint counsel to 

represent the defendant on the defendant’s first petition for post-conviction 

collateral relief.”)(emphasis added); Commonwealth v. Figueroa, 29 A.3d 

1177, 1181 (Pa. Super. 2011) (it is undisputed that first-time PCRA petitioners 

have a rule-based right to counsel).
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Appellant filed responses to the PCRA court’s Rule 907 notice on October 14, 

2016, and October 19, 2016. Response, 10/14/16; Response, 10/19/16. The 

PCRA court granted counsel’s request to withdraw as counsel and dismissed 

the PCRA petition on October 19, 2016. Order, 10/19/16. Appellant filed a 

timely notice of appeal;4 both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

We summarized the facts of the crimes in the nunc pro tunc direct 

appeal, as follows:

The facts underlying the instant cases are as follows: . . . 

Appellant . . . cut the gas line directly linked to the stove in his 

apartment, which caused a massive explosion and fire, and 

$54,000 worth of property damage. [CP 51-CR-0701681-2001, 

and CP-51-CR-0706161-2001] involve Appellant’s attempted 

escape from his preliminary hearing and subsequent assault of 

two law enforcement officers. [CP-51-CR-0906271-2001]

____________________________________________

4

 On June 21, 2017, the Superior Court Prothonotary issued a rule to show 

cause why the appeal should not be quashed, noting that the PCRA court 

entered four separate orders dismissing the PCRA petition, and Appellant, on 

November 15, 2016, filed one pro se notice of appeal listing four trial court 

docket numbers. Appellant filed two responses. Thereafter, on August 21, 

2017, this Court filed a per curiam order stating, in part, that the amended 

notices of appeal attached to Appellant’s pro se Motion for Permission to File 

Amended Notice of Appeal were “hereby accepted” and directing our 

Prothonotary to forward copies of the amended notices of appeal to the PCRA 

court and Office of Judicial Records. Order, 8/21/17.

For the reasons stated in Appellant’s response, and in light of the filing 

of the amended notices of appeal, we conclude the appeal properly is before 

us. We further note that Commonwealth v. Walker, 2018 WL 2448643, 

___ A.3d ___ (Pa. 2018)(filed June 1, 2018), where our Supreme Court held 

that a single notice of appeal does not suffice for appeals from multiple 

dockets, is not applicable. The Walker Court held that its decision shall apply 

prospectively, and it was filed ten months after this Court’s acceptance of the 

amended notices of appeal in this case.
J-S27012-18

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involved Appellant’s luring of the nine year old victim into an 

abandoned factory. Once inside, Appellant had the victim take off 

her clothes and he removed his own pants. Appellant then laid on 

top of the nine-year-old and attempted to place his penis into her 

vagina. Finally, [CP-51-CR-0712461-2001] involved the [r]ape of 

the twelve-year-old victim. Appellant was a friend of the victim’s

brother, and while driving the girl to school, Appellant drove to a 

secluded path and attempted to kiss her. When the victim

refused, Appellant threatened her that he had a razor, and

proceeded to place his penis into her anus.

Naples, 1983 EDA 2005 (unpublished memorandum at 2).

Preliminarily, we note that Appellant has failed to comply with our 

appellate rules in a significant way. “Appellate briefs must conform materially 

to the requirements of the Pennsylvania Rules of Appellate Procedure, and this 

Court may quash or dismiss an appeal if the defect in the brief is substantial.” 

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017); 

Pa.R.A.P. 2101. “Although this Court is willing to construe liberally materials 

filed by a pro se litigant, a pro se appellant enjoys no special benefit. 

Accordingly, pro se litigants must comply with the procedural rules set forth 

in the Pennsylvania Rules of the Court.” Id.

Appellant’s brief fails to comply with Pa.R.A.P. 2116(a). That rule 

requires a Statement of Questions Involved, and notably, demands that “[n]o 

question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Despite this 

admonition, we have chosen to overlook the defect in this case and consider 

the claims that we are able to discern from the argument section of Appellant’s 

brief.
J-S27012-18

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When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 

2016). The PCRA court’s findings will not be disturbed unless there is no 

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 

1095, 1100 (Pa. Super. 2014).

In order to be considered timely, a first, or any subsequent PCRA 

petition, must be filed within one year of the date the petitioner’s judgment 

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The PCRA’s time-forfiling requirements are mandatory and jurisdictional in nature, and a court 

may not ignore them in order to reach the merits of the petition. 

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). For purposes 

of the PCRA, 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).

As noted supra, when a PCRA petitioner’s direct appeal rights are 

reinstated nunc pro tunc in his first PCRA petition, as here, a subsequent PCRA 
J-S27012-18

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petition will be considered a first PCRA petition for timeliness purposes. 

Turner, 73 A.3d at 1286. In effect, the time for filing a PCRA petition is 

“restarted.” Id. Here, we affirmed Appellant’s judgment of sentence in his 

nunc pro tunc appeal on June 13, 2007, and the Pennsylvania Supreme Court

denied further review on December 18, 2007. Naples, 1983 EDA 2005 

(unpublished memorandum), appeal denied, Naples, 329 EAL 2007. The time 

for seeking review in the Supreme Court of the United States expired on March 

18, 2008,

5 ninety days after the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on December 18, 2007. 42 Pa.C.S. 

§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, Appellant’s judgment of sentence

became final on March 18, 2008, and in order to be timely under the PCRA, 

Appellant was required to file his PCRA petition on or before March 18, 2009. 

Because Appellant did not file the instant PCRA petition until July 14, 2014, 

more than six years after his judgment of sentence became final, the petition 

is patently untimely.

If a petitioner does not file a timely PCRA petition, his petition 

nevertheless may be received under three limited exceptions to the timeliness 

____________________________________________

5

 The ninetieth day fell on Sunday, March 17, 2008; however, when the last 

day of any time period referred to in a statute falls on a Sunday, we omit that 

day from the computation. 1 Pa.C.S. § 1908. Commonwealth v. Davis, 86 

A.3d 883 (Pa. Super. 2014).
J-S27012-18

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requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1).6 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 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). 

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

Appellant first attempts to raise legality challenges to his sentences. 

Appellant’s Brief at 14–20. “[A] legality of sentence claim may nevertheless 

be lost should it be raised . . . in an untimely PCRA petition for which no timebar exception applies. . . .” Commonwealth v. Miller, 102 A.3d 988, 995 

(Pa. Super. 2014). Appellant initially avers that the sentencing orders conflict 

____________________________________________

6

 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).
J-S27012-18

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with the trial court’s statements at the sentencing hearing, and he did not 

realize the trial court had not imposed mandatory minimum sentences. 

Appellant’s Brief at 14.

We reject his claim that this qualifies as a previously unknown fact. 

Appellant’s Brief at 14. The sentencing transcript and the sentencing orders 

are part of the original record and could have been reviewed in the past 

sixteen years since the entry of his pleas in 2001 and subsequent sentencing. 

Thus, Appellant could have ascertained any such claim by the exercise of due 

diligence. 42 Pa.C.S. § 9545(b)(1)(ii). This contention does not provide a 

basis for overcoming the untimeliness of his PCRA petition because it is

apparent from the sixteen-year delay that Appellant failed to seek out the 

information in a duly diligent manner. See Commonwealth v. Robinson, 

___ A.3d ___, 2018 PA Super 109, *8 (Pa. Super. filed May 2, 2018) (en banc)

(“Due diligence demands that the petitioner take reasonable steps to protect 

his own interests.”).

Moreover, Appellant acknowledges that the transcript “reads as 

described” by the PCRA court, but he fails to identify where such reference 

can be found. Appellant’s Brief at 14. “It is an appellant’s duty to ensure that 

the certified record is complete for purposes of review.” Commonwealth v. 

Reed, 971 A.2d 1216, 1219 (Pa. 2009). It is not this Court’s responsibility to 

comb through the record seeking the factual underpinnings of a claim. 

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). In 
J-S27012-18

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addition, this Court has stated that a “[f]ailure to ensure that the record 

provides sufficient information to conduct a meaningful review constitutes 

waiver of the issue sought to be reviewed.” Commonwealth v. Lopez, 57 

A.3d 74, 82 (Pa. Super. 2012). This issue is waived, and even if not waived, 

for reasons cited above, it lacks merit.

Appellant’s second and third claims, regarding the propriety of his 

sentences for burglary and escape, Appellant’s Brief at 16–18, and the 

applicability of Alleyne v. United States, 570 U.S. 99 (2013) to his case, 

Appellant’s Brief at 19–20, were addressed by the PCRA court in its Pa.R.A.P. 

1925(a) opinion. In disposing of these claims, we rely on the PCRA court’s

rationale as if it were our own.

Appellant’s fourth claim suggests that “the ADA at the PCRA evidentiary 

hearing[7] committed fraud when it presented false evidence. . . .” Appellant’s 

Brief at 21. Appellant fails to assert applicability of an exception to the PCRA 

time bar. Moreover, Appellant has failed to include any references or citations 

to the notes of testimony from any evidentiary hearing or citations to relevant 

case law in support of his claim. Id. Indeed, Appellant fails even to identify 

the “false evidence” to which he refers. For these reasons, we conclude that 

the issue is waived. See Commonwealth v. Fransen, 42 A.3d 1100, 1116 

____________________________________________

7

 We assume Appellant is referencing the evidentiary hearing relating to his 

prior PCRA petition, because the instant PCRA petition was dismissed without 

a hearing.
J-S27012-18

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n.14 (Pa. Super. 2012) (citing Commonwealth v. Einhorn, 911 A.2d 960, 

970 (Pa. Super. 2006)) (concluding, inter alia, that a claim is waived for failure 

to direct this Court’s attention to that part of the record substantiating it); see 

also Pa.R.A.P. 2119(c) (“If reference is made to . . . any other matter 

appearing in the record, the argument must set forth, in immediate connection 

therewith, or in a footnote thereto, a reference to the place in the record where 

the matter referred to appears.”). As noted supra, this Court will not comb

through the record seeking the factual underpinnings of a claim. Samuel, 

102 A.3d at 1005.

Appellant’s final issue suggests the PCRA court erred in dismissing his 

PCRA petition without a hearing. In particular, he complains as follows:

In Appellant[’]s petition, he stated that his appellate

attorney, Mr. John Cotter, asked Appellant if he would like his file 

returned at the conclusion of his representation. Appellant, 

believing that Mr. Cotter would merely be returning the file that 

he himself had provided Mr. Cotter, agreed. When the parcel 

arrived at the State Correctional Institute at Fayette, the 

authorities at the institution told Appellant that he could not have 

this parcel for security reasons due to it containing computer 

disks, metal clips, etc. The institution gave Appellant two options: 

Ship or destroy. Appellant only had one person he could send it 

to, so he sent it to his Uncle. Appellant’s uncle refused to return 

this parcel to Appellant despite Appellant[’]s multiple requests. As 

Appellant had no idea of what was in this parcel, and because Mr. 

Cotter ignored all of Appellant’s inquiries, Appellant was without 

any recourse in getting this material.

Appellant’s Brief at 22–23.

Appellant suggests the PCRA court “did not consider the facts as set 

forth by Appellant in consideration of the question as to if Appellant met one 
J-S27012-18

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of the exceptions for the PCRA time bar.” Appellant’s Brief at 23. Appellant 

does not identify to which exception of the PCRA time bar he is referring. We 

determine that it qualifies for none. The issue has no merit.

We conclude that the PCRA court properly dismissed Appellant’s PCRA 

petition without a hearing. For the reasons stated herein, and in reliance on 

the PCRA court’s opinion,8 we affirm the untimeliness of Appellant’s petition 

and the absence of applicability of any exception. Because Appellant’s PCRA 

petition was untimely and no exceptions apply, the PCRA court lacked 

jurisdiction to address the claims presented and grant relief. 

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (PCRA 

court lacks jurisdiction to hear untimely petition). Likewise, we lack the 

authority to address the merits of any substantive claim raised in the PCRA 

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

(“Jurisdictional time limits go to a court’s right of competency to adjudicate a 

controversy.”).

Order affirmed.

____________________________________________

8

 We direct the parties to attach a copy of the PCRA court’s opinion in the 

event of future proceedings in this matter.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/18
IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

Circulated 06/28/2018 03:12 PM 

FILED 

JAN i 8 2017 

Appeals/Post il'lal 

Office of JudlclaJ Recore 

COMMONWEAL TH OF PENNSYLVANIA 

v. 

DOMINC NAPLES 

CP-51-CR-0701681-2001 

CP-51-CR-0706161-2001 

CP-51-CR-0712461-2001 

CP-51-CR-0906271-2001 

SUPERIOR COURT 

NO. 3649 EDA 2016 

OPINION PURSUANT TO PA.R.A.P. 1925(a) 

-- ....,}�,,....., 

MAZZOLA, WILLIAM, J. 0:8EJl5MBER /C' 

This is a prose appeal from the denial of the defendant Dominic Naples' third petition 

for relief under the Post Conviction Relief Act, 42 Pa.CS.§ 9541 et seq., hereinafter the PCRA. 

In his Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), he states the 

issues in much the same ways he stated his underlying allegations in support of his claim of 

ineffective assistance of prior counsel, which will be set forth and discussed in detail infra. In 

that discussion, however, it will become abundantly clear that the present petition was untimely 

filed, no exceptions to the PCRA timely filing requirements apply, and those underlying claims 

are completely meritless or have been previously litigated or waived, with the exception of his 

one claim that he is serving an illegal sentence pursuant to, inter alia, the decision in Alleyne v. 

United States, 133 S.Ct. 2151, 186 L.Ed2d 314 (2013), which proscribed certain mandatory 

minimum sentencing statutes and rendered a number of Pennsylvania's unconstitutional. But 

even if those rulings were in effect at the time he was sentenced, he would still not be entitled to 

any relief because he was not, in fact, given any mandatory sentences. 

The histories of his cases and his present proceeding were thoroughly set forth in the 

courts' opinions in his previous appeals and his latest appointed PCRA counsel's letter brief filed 

in the present one in compliance with the ruling in Pennsylvania v. Finley, 481 US. 551, 107 

1 
S.Ct. 1990, 95 L.Ed2d 539 (1987), which was that appointed counsel in postconviction 

proceedings could withdraw after having reviewed the trial court record, consulted with the 

petitioner, and written to the trial court to inform it that there was no arguable basis for collateral 

relief and to request permission to do so. In its opinion in the appeal from the dismissal of the 

defendant's second PCRA petition, this Court addressed it as if it was his first, but in his actual 

first PCRA petition he requested and had been granted reinstatement of his post sentence motion 

rights following which his nunc pro tune post sentence motion was denied, and his judgment of 

sentence was affirmed in the ensuing direct appeal. Thus, in its Pa.R.A.P. 1925(a) opinion filed 

in his appeal of the denial of his last previous PCRA petition the PCRA court referred to it as his 

second, and in the Finley letter counsel referred to the one presently at issue as his third. 

Appellant, Dominic Naples, appeals from the June 8, 2012 order, dismissing 

his petition filed pursuant to the [PCRA]. After careful review, we affirm on the 

basis of the well-reasoned PCRA court opinion. 

The relevant facts, as set forth by a prior panel of this Court on direct appeal, 

are as follows. 

CP 0011-0832 involved an [a]rson committed by [Appellant] 

whereby he cut the gas line directly linked to the stove in his 

apartment, which caused a massive explosion and fire, and $54,000 

worth of property damage. CP 0107-0168 & 0616 involve[d] 

[Appellant's] attempted escape from his preliminary hearing and 

subsequent assault of two law enforcement officers. CP 0109-0627 

involved [Appellant's] luring of [the] nine[-Jyear[-Jold [victim] into 

an abandoned factory. Once inside, [Appellant] had the victim take 

off herclothes and he removed his own pants. [Appellant] then laid 

on top of the nine-year-old and attempted to place his penis into her 

vagina. Finally, CP 0107-1246 involved the [r]ape of a twelve-yearold [victim]. [Appellant] was a friend of the [victim's] brother, and 

while driving the girl to school, [Appellant] drove to a secluded path 

and attempted to kiss her. When [the victim] refused, [Appellant] 

threatened her that he had a razor, and proceeded to put his penis in 

her anus. 

Commonwealth v. Naples, 931 A.2d 50 (Pa.Super.2007) (unpublished 

memorandum at 2), appeal denied, 939 A.2d 890 (Pa.2007) ... 

2 
The PCRA court summarized the pertinent procedural history of this case as 

follows. 

[Appellant] had entered a negotiated plea of nolo contendere to a 

charge of arson on July 10, 2001 (case no. CP-51-CR-1108321- 

2000), open pleas of nolo contendere to charges of aggravated 

assault (two counts), escape and burglary on October 3, 2001 (cases 

no.CP-51-CR-0701681 & 0706161-2001), and open guilty pleas 

to rape and related charges on April 16, 2002 ( cases numbered in the 

above caption), arising out of separate and unconnected incidents, 

except that the assault related charges arose from [Appellant's] 

attempt to escape at his preliminary hearing in the arson case. The 

cases were consolidated for sentencing pursuant to Pa. R. Crim. P. 

701. On August 20, 2002, [Appellant] was found not to qualify as a 

Sexually Violent Predator (SVP) and was sentenced to four 

concurrent terms of incarceration amounting to an aggregate of ten 

(10) to twenty (20) years for the charges in the two rape cases, and 

to additional concurrent terms for the other charges to run 

consecutively thereto, one being the negotiated sentence for the 

arson, aggregating to twenty-two (22[Yi]) to forty-five (45) years. 

Though the record is a little unclear in some places where the 

pleadings or evidence refer to all of the five cases and seven 

sentences, it will be seen that the present proceedings are solely 

directed to the aggregate sentences for the two rape cases. While all 

of [Appellant's] pleas and judgments of sentence were challenged in 

the post sentence motion and included in the direct appeal, here 

[Appellant] only requested resentencing for those rape charges. 

Following sentencing, [Appellant] filed a "Motion to Withdraw 

and Vacate Guilty Plea" prose on August 26, 2002, which was 

dismissed by operation oflaw on December 30, 200[2], and no 

appeal was filed. In [said motion], [Appellant] claimed that his 

pleas were not intentional, knowing or voluntary, that he was led to 

believe by the [trial] court and his counsel that he would enter 

them in exchange for unspecified other charges being dismissed, 

but they were not, and he did not understand that by entering them 

he would be unable to appeal from the denial of his motion to 

suppress or obtain a trial de novo. However, it was subsequently 

ruled in the appeal that his pleas were intentional, knowing and 

voluntary and that he was advised of the affects his pleas would 

have on his appeal rights, and all other charges to which he did not 

plea were dropped and there was no motion to suppress, and none 

of those were included in this PCRA proceeding. [Appellant] filed 

his first PCRA petition prose on June 1, 2003, new counsel, [John 

P. Cotter, Esquire (Attorney Cotter),] was appointed who filed an 

amended and a supplemental amended petition [on June 21, 2004 

and August 17, 2004, respectively], and his post sentence rights 

were reinstated in February of 2005. 

3 
On February 11, 2005, Appellant filed timely post-sentence motions nunc pro 

tune, which were denied by the trial court on June 28, 2005. Appellant subsequently 

appealed, and on June 13, 2007, this Court affirmed Appellant's judgment of 

sentence. See Naples, supra. Thereafter, Appellant filed a petition for allowance of 

appeal that was denied by our Supreme Court on December 18, 2007. Id. 

On July 16, 2008, Appellant filed a timely pro se PCRA petition raising, inter 

alia, claims of ineffective assistance of trial and appellate counsel. Elayne C. 

Bryn, Esquire (Attorney Byrn) was appointed to represent Appellant, and filed 

amended and supplemental amended PCRA petitions on Appellant's behalf on 

October 21, 2009, and January 6, 2011, respectively. On June 7, 2012, the PCRA 

court commenced evidentiary hearings on Appellant's petition. 

Following a two-day hearing, the PCRA court dismissed Appellant's petition 

by order dated June 8, 2012. This timely appeal followed on June 29, 2012. 

On appeal, Appellant raises the following issues for our review. 

I. [Whether] [a]ppellate counsel was ineffective in failing to 

properly comply with Pa.R.A.P. 2119(/) and Pa.R.A.P. 1925(b) 

which resulted in a waiver of a meritorious sentencing issue[?] 

II. [Whether] [t]rial was ineffective for not adequately 

communicating a plea offer of 5 to 15 years[?] 

Commonwealth v. Naples, 87 A. 3d 390 (unpublished memorandum) ( citations to the record and 

footnote omitted), No. 1842 EDA 2012, 2013 WL 11254723 at *1-2 (Pa.Super. 2013) (decided 

September, 24, 2013), reargumeni denied Dec. 5, 2013, appeal denied, 625 Pa. 658, 92 A. 3d 811 

(2014).1 The appeal was denied on May 21, 2014, and the defendant did not seek further review. 

He commenced the present proceedings by filing a prose petition on July 14, 2014. He 

filed a prose supplemental petition on March 18, 2015, and after being granted leave to further 

supplement it, he filed a pro se "Supplemental-Amended" petition on March 1, 2016. In the 

meantime, the court had appointed James R. Lloyd III as counsel who filed the Finley letter brief 

on July 28, 2016. In it counsel stated that he had reviewed all of the defendant's PCRA filings 

and other records and communicated with the defendant extensively regarding his claims and, 

1 The arson case is not included in the present proceedings. 

4 
after he presented a thorough factual and legal review and discussion of them, he concluded: 

Undersigned counsel has conducted a thorough, independent review of the trial, 

sentencing, direct appellate, and PCRA records in this matter in an effort to identify 

any potentially meritorious claim under the PCRA. However, in light of the totality 

of the circumstances, and applicable law, the undersigned concludes that any 

reviewing court applying Pennsylvania law would hold that petitioner's allegations 

regarding the claims discussed herein do not warrant relief under the PCRA. 

A careful review of the record and controlling law leads me to conclude that 

there are no other issues that possess arguable merit. For the reasons set forth 

supra, I respectfully submit that I am unable to ethically file an amended petition 

on Mr. Naples' behalf because the petition at issue is not timely filed and no 

exception to the jurisdictional time bar applies. 

The court unreservedly agreed with counsel's assessment, issued a Pa.RiCrtm.P, 907 notice of 

intention to dismiss based upon it on September 19th, to which the defendant responded pro se on 

October 14th and 19th, which only consisted of reassertions of his belief in the meritoriousness of 

all of his claims and a denunciation of counsel's Finley assessment, the court formally dismissed 

the petition on the latter date, and this appeal followed on November 15th. 

In the present prose petition, in the eligibility-for-relief section of the commonly used 

prison supplied PCRA petition form he employed, the defendant checked off the boxes listing the 

claims being presented as constitutional law violations, ineffective assistance of counsel and an 

unlawfully induced plea of guilty, but the stated factual bases for them were that "The mandatory 

minimum sentence(s) as applied to my cases have been ruled unconstitutional; The Alford plea 

tendered was unknowing and unintelligent due to there being no factual basis for plea [sic]; the 

Courts [sic] statement it did not know what an Alford Plea was." He is not eligible for relief on 

the latter two bases because, of course, the claim of a legally faulty plea was previously litigated 

and adversely ruled upon in his direct appeal, and, therefore cannot be a basis in support of an 

illegal sentence claim. "Further, Appellant must demonstrate that the issues raised in his PCRA 

petition have not been previously litigated or waived, and that 'the failure to litigate the issue 

5 
prior to or during trial or on direct appeal could not have been the result of any rational strategic 

or tactical decision by counsel.' [Commonwealth v.] Washington, [592 Pa. 689,] 927 A.2d [586 

(2007)] at 593 (citing 42 Pa.CS. §§ 9543(a}(3), (4))." Commonwealth v. Steele, 599 Pa. 341, 

961 A.2d 786, 796 (2008). His supplemental petition consisted of a garrulous twenty page 

history of his cases and a convoluted legal discussion of why his sentences were illegal. He 

alleged that "The Commonwealth gave notice within the Bill of Information, the Arraignment, 

and at Sentencing; that it was proceeding under the Mandatory Minimum statute at 42 Pa.C.S.A. 

Section 9718(A)(l) and (2) for the charges found at CP-51-CR-0712461-2001 and CP-5 l-CR0906271-2001." The former included the rape and IDSI and the latter the attempted rape and 

IDSI. However, at the time of his sentencing,§§ 9718(A)(l) and (2) provided for minimums and 

maximums of five to ten years, which is what the prosecutor did request the court to impose, and 

which had been adjudicated constitutional (Commonwealth v. Chmiel, 416 Pa. Super. 235, 610 

A.2d 1058, 1061 (1992), appeal denied, 535 Pa. 613, 629 A.2d 1376 (1993), cert. denied, Chmiel 

v. Pennsylvania, 510 US. 1013, 114 S. Ct. 605, 126 L. Ed. 2d 569 (1993)). The court, however, 

sentenced him to ten to twenty for each offense, based on aggravating factors, and without any 

reference to the mandatories, which, coincidently, the statute presently does provide but which 

has been declared unconstitutional (Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)) based 

uponAlleyneandApprendiv. New Jersey, 530 U.S. 466, 1208.Ct. 2348, 147 L.Ed2d435 

(2000). He then noted that his appointed trial counsel had filed a motion to preclude application 

of the mandatory minimum sentencing statutes because they were unconstitutional which was 

not ruled upon. It was not ruled upon because it became moot once the sentencing court opted 

not to apply any mandatories. The only thing relevant to the present illegal sentence claim was 

the citation to the Alleyne decision, and other cases applying it, in which the Court 

6 
... held that any fact that, by law, increases the penalty for a crime must be treated 

as an element of the offense, submitted to a jury, rather than a judge, and found 

beyond a reasonable doubt See Alleyne, - US. at--, 133 S. Ct. at 2163. The 

effect was to invalidate a range of Pennsylvaniasentencing statutes predicating 

mandatory minimum penalties upon non-elemental facts and requiring such facts to 

be determined by a preponderance of the evidence at sentencing. See, e.g., 

Commonwealth v. Hopkins, -Pa.--,--, 117 A.3d 247, 262 (2015) (holding 

that Section 6317 of the Crimes Code, 18 Pa.CS.§ 6317-which predicates a 

mandatory minimum sentence [for violations of drug laws in drug-free school 

zones] upon a fact to be determined by a preponderance at sentencing-was 

constitutionally infirm, under Alleyne). 

Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016) (holding that defendant not entitled 

to relief from judgment which became final prior to the Alleyne and Apprendi decisions which 

encompassed sentences under 42 Pa. CS § 97 l 2(a) requiring imposition of a mandatory 

minimum sentence for crimes of violence involving the visible possession of a firearm placing a 

victim in fear of death or serious bodily injury ruled unconstitutional in Commonwealth v. 

Valentine, 101 A.3d 801, 2014 Pa. Super. 220 (2014)). The Court also ruled that those decisions 

did not apply retroactively. 

There is no question that this Court has had some difficulty defining the 

contours of "illegality" in the abstract for purposes of the issue preservation 

doctrine. Any remaining uncertainty in this regard, however, does not affect our 

analysis, above and below. Again, if a new constitutional rule does not apply, it 

cannot render an otherwise final sentence illegal. 

Id at 815 citation and footnote omitted). Thus, his claims that the ruling in Alleyne is 

retroactively applicable and in light of which he is serving an unconstitutional mandatory 

minimum sentence are patently incorrect. "We hold that Alleyne does not apply retroactively to 

cases pending on collateral review, and that Appellant's judgment of sentence, therefore, is not 

illegal on account of Alleyne." (Id at 820), and, again, he was not given any mandatory 

sentences. The amended petition consisted of an even more verbose diatribe of seventy-six 

pages, again challenging the legality of his sentences on the same bases. In the Finley brief, 

counsel amply categorized all of his claimed bases as: 

7 
• in light of, inter alia, the [Alleyne decision], petitioner is serving an illegal, 

unconstitutional mandatory minimum sentence; 

• petitioner's pleas were not knowing, intelligent and voluntary because there was no 

factual basis for the pleas; 

• C.F. will testify that petitioner never attempted to rape her; 

• the sentences imposed for the charges of burglary and escape are illegal because 

a sentence cannot be imposed for the crime of burglary and the crime which one 

intended to commit upon entering the property burglarized; 

• the Third Petition is timely because it asserts a newly recognized constitutional right 

as a result of the Alleyne decision; 

• the ADA at the PCRA evidentiary hearing committed "fraud" while arguing that 

the Third Petition should be dismissed; 

• the sentences for rape and IDSI are illegal insofar as they arise from a "single 

act of penetration" and are required to merge; 

• the trial court did not have jurisdiction to accept petitioner's plea on the 

Attempted Rape case because petitioner, aged 18 years and 3 months at the time 

the crime was committed, was on juvenile probation at that time and less than 21 

years of age; 

• that petitioner's pleas on the Assault and Escape cases were unlawfully procured 

by fraud through the Commonwealth because the ADA agreed to downgrade the 

aggravated assault charges in each case from 1st degree felonies to 2nd degree 

felonies, but the aggravated assaults were already graded as 2nd degree felonies. 

Petitioner claims that this claim is timely because 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 as the necessary paperwork was in the possession 

of petitioner's uncle for 14 years but petitioner had a falling out with his uncle 

after requesting that those documents be sent to him by Attorney Cotter. 

Giving the defendant the benefit of the doubt, the court assumes that the last sentence was his 

attempt to meet one of the exceptions to the timely filing requirements of the PCRA, that" ... the 

failure to raise the claim previously was [because] 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 ... " (§ 9545(b)(l)(ii)), and was intended by him to be applicable to all of the stated 

bases for the claim, and that the mandatory sentencing claim is, though disjointly stated, that his 

prior counsel rendered ineffective assistance in failing to object to, and otherwise challenge the 

legality of, his sentences. His attempt to meet the timeliness exception with regard to that claim 

is that Alleyne represented a subsequently recognized retroactive constitutional right under § 

9545(b)(l)(iii), he was not entitled to file a third PCRA petition asserting a claim based upon it 

8 
until the completion of his appeal from the denial of his previous petition, and he filed the 

present petition within sixty days of the denial of his request for allocatur as allowed by§ 

9545(b)(2). With regard to all of the other stated bases for the claim, they can be summarily 

disposed ofby simply noting that they were completely unsupported by any citations to any 

evidence, either of record or not, were either previously litigated or waived, and are patently 

frivolous on their face. If any of his prior counsel failed to assert those bases at sentencing or in 

the direct appeal they should have been asserted in his prior PCRA proceedings, and if they were 

not, they have been waived. It is not necessary to ascertain which. "Appellant cannot obtain 

post conviction review of claims previously litigated on appeal by presenting new theories of 

relief to support the previously litigated claims. Commonwealth v. Stokes, 576 Pa. 299, 304-05, 

839 A.2d 226, 229 (2003)." Commonwealth v. Brown, 582 Pa. 461, 872 A. 2d I I 39, I I 45 (2005). 

In addition, in view of the extensive history of the litigation in his cases, Finley counsel's 

assessment of his unascertainable facts allegation is suitably germane: 

[The] facts [ with regard to the falling out with his uncle] are not sufficient to 

successfully invoke the time bar exception under§ 9545(b)(l)(ii). Petitioner filed 

not one, but two, timely pro se PCRA petitions. He was represented by two 

different court appointed attorneys with respect to each PCRA petition. Both 

attorneys communicated with petitioner and filed amended petitions on behalf of 

petitioner. Notably, the document at issue - i.e., the criminal complaint - was in the 

possession of the first of these attorneys, Attorney Cotter, according to the Third 

Petition. Further, at the conclusion of his representation of petitioner, Attorney 

Cotter forwarded the necessary documents and his entire file to petitioner's family 

member at petitioner's direction. Accordingly, the criminal complaint could [] 

have been found, and this claim ascertained, by the exercise of due diligence. This 

fact is fatal to a claim that the time bar exception of§ 954S(b)(l)(ii) is applicable to 

the matter sub judice. 

Thus, the only issue that actually needs to be addressed here is the only newly raised basis for the 

present ineffective assistance claim, the ruling in Alleyne and its applicability. 

This Court addressed the burdens of pleading and proof borne by PCRA petitioners, the 

standards trial courts are to employ in assessing and ruling upon their claims, and the courts' 

9 
scope and standard of review with regard to the those evaluations in its memorandum in the 

previous appeal, and its and the PCRA court's evaluations and rulings on the underlying claims 

therein are also relevant to the present issue. 

"Our review of a PCRA court's decision is limited to examining whether the 

PCRA court's findings of fact are supported by the record, and whether its 

conclusions oflaw are free from legal error." Commonwealth v. Koehler, 36 A.3d 

121, 131 (Pa.2012) (citation omitted). "[Our] scope ofreview is limited to the 

findings of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the PCRA court level." Id In order to be 

eligible for PCRA relief, a petitioner must plead and prove by a preponderance of 

the evidence that his conviction or sentence arose from one or more of the errors 

listed at 42 Pa. CS.A. § 9543(a)(2). These issues must be neither previously 

litigated nor waived. 42 Pa.CS.A.§ 9543(a)(3). "The PCRA court's credibility 

determinations, when supported by the record, are binding on this Court." 

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.2011) (citation omitted). 

"However, this Court applies a de novo standard of review to the PCRA court's 

legal conclusions." Id. 

As noted, Appellant argues his appellate counsel was ineffective for failing to 

properly raise a challenge to the discretionary aspects of sentencing for appellate 

review [and] his trial counsel ... by failing to properly convey to him the 

Commonwealth's plea offer of five to 15 year's imprisonment. 

To prevail on a claim of ineffective assistance of counsel under the PCRA, a 

petitioner must plead and prove by a preponderance of the evidence that counsel's 

ineffectiveness "so undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place." 42 Pa.CS.A.§ 

9543(a)(2)(ii). A petitioner must establish "(I) the underlying legal issue has 

arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) 

Appellant was prejudiced by counsel's act or omission." Koehler, supra at 132, 

citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.1987). "Counsel is 

presumed to be effective and Appellant has the burden of proving otherwise." 

Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa.2001) (citations omitted). 

Furthermore, "[ijf an appellant fails to prove by a preponderance of the evidence 

any of the ... prongs, the Court need not address the remaining prongs of the test." 

Commonwealth v. Fitzgerald, 979 A. 2d 908, 911 (Pa.Super. 2009), appeal denied, 

990A.2d 727 (Pa.2010). 

In the instant matter, the PCRA court authored an extensive, 22-page opinion 

that thoroughly analyzed Appellant's ineffectiveness claims and concluded they 

were either waived or devoid of merit. Upon careful review of the record, including 

the parties' respective briefs and the applicable law, and in light of this Court's 

scope and standard ofreview, we agree with the PCRA court's determinations. 

10 
Specifically, we agree with the PCRA court that Appellant's contention his 

appellate counsel was ineffective for failing to properly raise a challenge to the 

discretionary aspects of sentencing is waived. As recognized by the PCRA court, 

the record clearly indicates that Appellant waived said claim by (1) failing to 

specify in his Pa.R.A.P. l 925(b) statement how prior counsel purportedly was 

ineffective; (2) failing to adequately develop this claim in his pleadings; and (3) 

failing to properly develop this claim on appeal by including discussion and 

citation and relevant authorities in his brief. 

Moreover, we discern no error on the part of the PCRA court in concluding that 

Appellant's claim his trial counsel was ineffective for failing to convey a plea offer 

was meritless, as the record indicates that counsel did, in fact, convey the 

Commonwealth's offer to him. As the PCRA court noted in its opinion, "the issue 

boiled down to simply whether the [PCRA] court believed the offer had not been 

conveyed to [Appellant], and [the PCRA court] ruled that it could not accept that 

allegation and denied the petition." It is well settled that counsel cannot be deemed 

ineffective for failing to raise a claim that is devoid of merit. Koehler, supra; 

accord Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa.Super.2008), appeal 

denied, 980 A. 2d 606 (Pa. 2009). 

Lastly, we note that although Appellant's brief raises two distinct claims of 

ineffective assistance of trial and appellate counsel, it fails, in large part, to 

demonstrate that counsel's purported ineffectiveness "so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have 

taken place." 42 Pa. CS.A.§ 9543(a)(2)(ii). 

Accordingly, we conclude the October 4, 2012 opinion of the PCRA court 

comprehensively discusses and properly disposes of Appellant's ineffective 

assistance of counsel claims. Therefore, we adopt said opinion as our own for 

purposes of this appellate review, and affirm the PCRA court's June 8, 2012 order. 

Naples, supra, WL at *2-4 (citations to record omitted). The Court then reproduced the PCRA 

court's opinion in its entirety, it's above concise summation of which will suffice for present 

purposes. Judge Bowes filed a concurring memorandum agreeing with the majority that the 

defendant was not entitled to relief but disagreeing with its and the PCRA court's rationale 

pertaining to the waiver of his discretionary sentencing ineffectiveness claim by failing to 

adequately present it in his pleadings, Pa.R.A.P. J925(b) Statement and brief, believing instead 

that he" ... adequately alerted the PCRA court and this Court of his position that counsel was 

ineffective in failing to secure review of his outside the guideline range sentence based on its 

11 
alleged unreasonable excessiveness where the court purportedly did not consider mitigating 

evidence." id. at * 18. Her Honor then conducted an analysis of that claim under the standards 

regarding PCRA review as set forth by the majority and PCRA court and concluded: 

In the context of a discretionary sentencing ineffectiveness claim, unlike the 

failure to file a requested discretionary appeal, actual prejudice requires that the 

underlying sentencing issue entitle the petitioner to relief. Commonwealth v. 

Jones, 942 A.2d 903 (Pa.Super.2008); Commonwealth v. Lawrence, 960 A.2d 473 

(Pa.Super.2008); see also Commonwealth v. Reaves, 923 A.2d 1119 (Pa.2007) 

(holding that the failure to preserve a sentencing issue in a post-sentence motion 

or at sentencing requires a showing of prejudice in the nature of a reasonable 

probability that the outcome of the sentencing would have been different). In this 

regard, Appellant cannot establish that had counsel properly preserved and 

presented a claim that his sentence was unreasonably excessive in light of the trial 

court's failure to consider mitigating factors, he would have been entitled to resentencing. 

Instantly, the court had the benefit of a pre-sentence report. Therefore, we are 

required to presume all sentencing factors were properly weighed. See 

[Commonwealth v.] Macias, [968 A.2d 773, 776 (Pa .Super.2009)], at 778; Jones, 

supra; Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa.Super.2010) (when the 

sentencing court has the benefit of a pre-sentence report it is assumed that the 

court weighed the appropriate considerations along with mitigating statutory 

factors). It is apparent that the sentencing court reviewed Appellant's pre-sentence 

report and was aware of the mitigating issues; it simply chose not to accord them 

greater weight than other sentencing factors. See Commonwealth v. Pittman, 737 

A.2d 732 (Pa.Super.1999); Rhoades, supra. Since the court adequately considered 

the pertinent sentencing factors and merely weighed them in a manner 

inconsistent with Appellant's desires, I agree he cannot prove prejudice. See 

Macias, supra at 778. 

Id. at *22-23, following which the Judge added her agreement with the PCRA court's and the 

majority's findings that plea counsel testified that he did relay the plea offer at issue to the 

defendant, the PCRA court found plea counsel to have been credible and the defendant not, and 

that the dispositions entered by them were sound. id. at *23. 

All of those previous analyses apply equally to the present claim by simply changing the 

adjective "discretionary" to "legality" as applied to the aspects of the defendant's sentences. It is 

unnecessary to reconduct such an analysis in any more detail because his third petition was 

12 
untimely, none of the PCRA timeliness exceptions apply, and the Alleyne decision would not 

apply to his sentences if it wasn't or they did, even ifhe had been given mandatory sentences. 

The defendant correctly pointed out that Alleyne was decided on June 17, 2013, while the appeal 

of the disposition of his second petition was pending, he was thereby prohibited from filing 

another PCRA claim based upon Alleyne until that appeal's conclusion, and he filed the present 

third petition less than 60 days after allocator was denied with respect to that appeal, which does 

present a colorable claim that a timeliness exception may have been applicable. 

(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: 

* * * 

(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. 

(2) Any petition invoking an exception provided in paragraph (1) shall be filed 

within 60 days of the date the claim could have been presented. 

42 Pa.CS.§ 9545(b). "We now hold that when an appellant's PCRA appeal is pending before a 

court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending 

PCRA petition by the highest state court in which review is sought, or upon the expiration of the 

time for seeking such review." Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000). 

However, the defendant would not have gotten sixty days from the denial of his request for 

permission to appeal from the affirmance of the denial of his second PCRA petition within which 

to raise a sentencing issue based on Alleyne; he only would have gotten sixty days from the date 

on which his judgment became final, which was ninety days after his petition for allowance of 

appeal from the affirmance of his sentence of judgment in the direct appeal was denied by our 

Supreme Court on December 18, 2007. That would not have availed him anyway because 

Alleyne wasn't decided until over six years later, before which the mandatory sentences were not 

13 
illegal. "Appellant did not preserve any challenge to his mandatory minimum sentence, his jury 

trial rights, or the constitutionality of§ 9712.1 [mandatory minimum sentences for certain drug 

offenses committed with firearms], likely because similar challenges had been rejected based on 

prior United States Supreme Court decisions." Commonwealth v. Watley, 2013 PA Super 303, 

81A.3d108, 117 (2013), appeal denied, 626 Pa. 684, 95 A. 3d 2 77 (2014). Nor can the 

defendant depend on his argument that an illegal sentencing claim cannot be waived. 

In the case sub judice, Appellant was sentenced on July 18, 2005. This Court 

affirmed the judgment of sentence on October 23, 2007, and our Supreme Court 

denied allocator on May 8, 2008. Appellant did not seek a writ of certiorari from 

the United States Supreme Court. Therefore, Appellant's judgment of sentence 

became final on August 6, 2008, when the period for Appellant to file a petition 

for a writ of certiorari expired. See 42 Pa.CS.A.§ 9545(b)(3) (stating, "a 

judgment 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] ]"); US. Sup.Ct. 

R. 13(1) (stating "a petition for a writ of certiorari to review a judgment in any 

case ... is timely when it is filed with the Clerk of this Court within 90 days after 

entry of the judgment[ ]"). Therefore, Appellant had until August 6, 2009 to 

timely file his PCRA petition. As Appellant filed the instant petition on August 8, 

2013, it was patently untimely because it was filed more than four years past the 

deadline. However, Appellant avers that the time-bar exception at Section 

9545(b)(1)(iii) applies in this case. Specifically, Appellant avers that the United 

States Supreme Court's decision in Alleyne announced a new constitutional right 

that applies retroactively. 

* * * 

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. Commonwealth v. 

Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615 Pa. 784, 42 A.3d 

1059(2012), citing Tyler v. Cain, 533 US. 656, 663, 121 S.Ct. 2478, 150L.Ed2d 

632 (2001); see also, e.g., Commonwealth v. Taylor, 933 A.2d 1035, 1042 

(Pa.Super.2007) (stating, "for purposes of subsection (iii), the language 'has been 

held by that court to apply retroactively' means the court announcing the rule must 

have also ruled on the retroactivity of the new constitutional right, before the 

petitioner can assert retroactive application of the right in a PCRA petition[ ]"), 

appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has failed 

to satisfy the new constitutional right exception to the time-bar. 

14 
We are aware that an issue pertaining to Alleyne goes to the legality of the 

sentence. See Commonwealth v. Newman, 99 A.3d 861 90 (Pa.Super.2014) (en 

bane) (stating, "a challenge to a sentence premised upon Alleyne likewise 

implicates the legality of the sentence and cannot be waived on appeal[]"). It is 

generally true that "this Court is endowed with the ability to consider an issue of 

illegality of sentence sua sponte." Commonwealth v. Orellana, 86 A.3d 877, 883 

n. 7 (Pa.Super.2014) (citation omitted). 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. See Commonwealth v. Borovichka, 18 A.3d 1242, 1254 

(Pa.Super.2011) (stating, "[a] challenge to the legality of a sentence ... may be 

entertained as long as the reviewing court has jurisdiction[]") (citation omitted). 

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." Seskey, supra at 242. 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. See [Commonwealth v.] 

Fears, [624 Pa. 446, 86 A.3d 795, 803 (2014),] [Commonwealth v.] Lawson, [90 

A.3d 1 (Pa.Super.2014)]. 

Commonwealth v. Miller, 2014 PA Super 214, 102 A.3d 988, 993, 995-96 (2014), reargument 

denied Dec. 5, 2014 (citations to record and footnotes omitted). See also Commonwealth v. 

Seskey, 2014 PA Super 27, 86 A.3d 237, 241, reargument denied (Apr. 21, 2014), appeal denied, 

627 Pa. 765, 101 A.3d 103 (2014) (" 'Though not technically waivable, a legality [of sentence] 

claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition 

for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.' 

Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.Super.2007) (citing Commonwealth v. 

Fahy. 558 Pa. 313, 737 A.2d 214, 223 (1999) ('Although legality of sentence is always subject to 

review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the 

exceptions thereto.')"); Commonwealth v. Cristina, 2015 PA Super 74, 114 A.3d 419, 423 

(2015), reversed on other grounds, 131 A.3d 482 (per curiam) (Pa. 2016)2 ("The time-bar is 

2 "The Petition for Allowance of Appeal is GRANTED on the issue of whether Petitioner's sentence violates the 

prohibition against mandatory life sentences for juvenile offenders announced by the Supreme Court of the United 

States [and whether that ruling] must be applied retroactively by the States .. ." Id. 13 l A.3d at 483. On remand, the 

Court ruled that Cristina was clearly entitled to resentencing because in another case it had specifically ruled that the 

rule prohibiting mandatory life sentences for juvenile offenders was to be applied retroactively. Commonwealth v. 

15 
jurisdictional in nature and, thus, the PCRA court lacks jurisdiction to entertain the Petition, let 

alone any amendment thereto.") Thus, since none of defendant's trial, direct appeal or prior 

PCRA counsel had any legal basis to object to, challenge on appeal, or submit a PCRA claim 

based on Alleyne or mandatory sentences, none of them can be faulted for failing to raise what 

would clearly have been a meritless claim. 

Finley counsel's assessments of some of the other claims in the defendant's pro se 

submissions bear noting. 

The Escape case is part of the current PCRA petitions being pursued by 

petitioner. It is alleged that petitioner assaulted two police officers as he attempted 

to escape from custody during his preliminary hearing with respect to the Arson 

case. The hearing was being conducted at the courtroom in the police district ... It 

is alleged that petitioner fled from the police district-while handcuffed- and ran 

into a nearby occupied residence where he was caught in an upstairs bedroom. 

* * * 

... A brief analysis of several of the substantive claims raised by petitioner seems 

to indicate that, to the extent that the claims of illegal imposition of various 

sentences are meritorious, petitioner has not suffered prejudice, or this court may 

correct any patent errors. 

Petitioner seeks post-conviction relief because he claims that in light of, inter 

alia, [Alleyne, he] is serving an illegal, unconstitutional mandatory minimum 

sentence. However, petitioner was not sentenced to any mandatory minimum 

sentences. The mandatory minimum referenced by the ADA at sentencing was 5 

to 10 years imprisonment for the Rape and Attempted Rape cases. However, the 

court imposed sentences of 10 to 20 years imprisonment on the relevant charges 

and, therefore, did not impose any mandatory minimum sentences subsequently 

invalidated by Alleyne. 

Petitioner seeks post-conviction relief because he claims that C.F. will testify that 

petitioner never attempted to rape her. Petitioner has not communicated with C.F. 

since she provided victim impact testimony at the sentencing hearing in 2002. [

3

1 

Petitioner seeks post-conviction relief because he claims that the sentences 

imposed for the charges of burglary and escape are illegal because a sentence 

cannot be imposed for the crime of burglary and the crime which one intended to 

commit upon entering the property burglarized. Section 3502 of the Crimes Code 

Cristina (memorandum not reported in A.3d), No. 601 WDA 2013, 2016 WL 1757237 at *3 (Pa.Super. 2016). Here, 

of course, there is no doubt that Alleyne does not apply retroactively. 

3 The court would also note that her testimony did not contribute to the defendant's convictions. He pled guilty to 

the charges and whether or not she would have so testified at sentencing is totally irrelevant at this point. 

16 
provides that "A person may not be sentenced both for burglary and for the offense 

which it was his intent to commit after the burglarious entry or for an attempt to 

commit that offense, unless the additional offense constitutes a felony of the first or 

second degree." Here, separate sentences were imposed for burglary and escape, 

however, the sentences are of identical length and were ordered to run concurrently. 

To the extent that this was an error, this court has the power to amend its records, 

correct mistakes, or correct defects in the record even after 30 days have lapsed 

since the entry of an order. Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970); 

Commonwealth v. Klein, 781 A.2d 1133 (Pa. 2001); Commonwealth v. Holmes, 933 

A.2d 57 (Pa. 2007). Thus, under the foregoing authority, this honorable court could 

correct the patent defects in the sentencing order without assuming jurisdiction 

under the provisions of the PCRA - jurisdiction which is lacking in this case. 

Petitioner seeks post-conviction relief because he claims that the sentences 

imposed for the charges of rape and IDSI are illegal insofar as they arise from a 

"single act of penetration" and are therefore required to merge. Even assuming 

arguendo that the sentences are required to merge, in these matters separate 

sentences were imposed for (attempted) rape and IDSI, however, the sentences 

are of identical length and were ordered to run concurrently with respect to each 

victim. To the extent that this was an error, this court has the power to amend its 

records, correct mistakes, or correct defects in the record even after 30 days have 

lapsed since the entry of an order. 

Petitioner seeks post-conviction relief because he claims that the trial court 

did not have jurisdiction to accept petitioner's plea on the Attempted Rape case 

because petitioner, aged 18 years and 3 months at the time the crime was 

committed, was on juvenile probation at that time and less than 21 years of age. 

While it is true that the juvenile justice system of the Court of Common Pleas 

retained jurisdiction to provide treatment, rehabilitation and supervision to 

petitioner, the Criminal Division of the Court of Common Pleas possessed 

concurrent jurisdiction over petitioner with respect to the crimes committed after 

his 18th birthday. 

The court believes counsel having referred to a court's power to correct the record to have been 

an abundance of caution. Aside from the fact that any claim of counsel ineffectiveness in failing 

to raise such sentencing issues should have been raised in his previous PCRA proceeding and 

were, thus, waived, while the defendant did enter the burglary victim's residence in continuance 

of his escape, the escape was not "the crime which [he] intended to commit upon entering the 

property burglarized." He had already committed the escape when he assaulted two police 

officers and ran out of the police administration building to elude lawful custody; even though 

17 
. . 

his entry was an attempt to continue that escape, the crime he intended to commit upon entering 

the property was obviously to avoid recapture and could possibly have been any number of 

others, one being perhaps to acquire something to use as a weapon to further facilitate his escape. 

In any event, the Commonwealth was not required to prove any intended crime. 

Under Pennsylvania law the crime of burglary is defined as an unauthorized 

entry with the intent to commit a crime after entry. 18 Pa. C. S. § 3 5 0 2; 

Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). The intent to 

commit a crime after entry may be inf erred from the circumstances surrounding 

the incident. Commonwealth v. Hardick, 475 Pa. 475, 380 A.2d 1235 (1977); 

Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). This intent 

may be inferred from actions as well as words. However, actions must bear a 

reasonable relation to the commission of a crime. 

* * * 

Once Appellant has entered the private residence by criminal means we can 

infer that Appellant intended a criminal purpose based upon the totality of the 

circumstances. . .. 

* * * 

Accordingly, we hold that in order to secure a conviction for burglary, the 

Commonwealth is not required to allege or prove what particular crime Appellant 

intended to commit after his forcible entry into the private residence . .. 

Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092, 1094-95 (1994). Therefore, the sentences 

for those admittedly temporally concurrent but legally separate criminal acts were not illegal. As 

for the rape, attempted rape and the two IDSis, the defendant was given a single sentence for 

those charges, the former for the kidnapping as well, in addition to separate sentences for two 

charges of corruption of the morals of a miner. Therefore, the crimes for which he claims he was 

sentenced illegally were, in fact, merged. 

On bill O 107-1246, which involves three felonies [ against BC], a Rape, 

I.D.S.I., Kidnapping and Corruption of the Morals of a Minor - - on the three 

felonies, the Rape, I.D.S.I., and Kidnapping, he's sentenced to 20 years ... 

* * * 

The total effect of that is that based upon the Complaints of [CF], he's doing 

10 to 20 years. When he finishes that, based upon the Complaints of [BC], he'll 

be doing 10 to 20 years ... 

Notes of Testimony, Deferred Sentencing, August 20, 2002, pp. 57, 58. In any event, it can be 

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proper for a court to issue separate sentences for rape and ISDI. 

InBlockburgerv. United States, 284 U.S. 299, 304, 52S.Ct. 180, 182, 76L.Ed. 

306, 309 (1932), the Supreme Court set forth the definitive test for determining 

when conduct in violation of more than one statute must be treated as the "same 

offense" for double jeopardy purposes: "The applicable rule is that where the same 

act or transaction constitutes a violation of two distinct statutory provisions, the test 

to be applied to determine whether there are two offenses or only one, is whether 

each provision requires proof of a fact which the other does not." That is, more than 

one offense may be found and punished in any given act or transaction only where 

each offense requires proof of an element not contained in the other(s). Id [Sale of 

morphine hydrochloride not in or from original stamped package, and without 

written order, held two separate offenses, although transaction was same]. 

* * * 

... "The assumption underlying the rule is that Congress ordinarily does not 

intend to punish the same offense under two different statutes. Accordingly, 

where two statutory provisions proscribe the 'same offense,' they are construed 

not to authorize cumulative punishments in the absence of a clear indication of 

contrary legislative intent." Whalen v. United States, 445 U.S. 684, 691-92, 100 

S.Ct. 1432, 1437-38, 63 L.Ed.2d 715, 723-24 (1980) (emphasis added) [single, 

undifferentiated act of possessing one gun supported two discrete sentences for 

separate firearms violations without offending double jeopardy]. 

Where ... a legislature specifically authorizes cumulative 

punishment under two statutes, regardless of whether those two 

statutes proscribe the "same" conduct under Blockburger, a 

court's task of statutory construction is at an end and the 

prosecutor may seek and the trial court or jury may impose 

cumulative punishment under such statutes in a single trial. 

Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535, 

544 (1983) (emphasis added) [being sentenced for both robbery in first degree and 

armed criminal action did not violate double jeopardy where Missouri legislature 

intended that punishment for both violations be cumulative]. 

* * * 

... Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 9, 426 A.2d 674, 678 

(1981) (allocatur denied) (separate sentences for rape, involuntary deviate sexual 

intercourse, indecent assault, and unlawful restraint based on single sexual attack 

were warranted; "[i]t is unthinkable that a woman, once having been raped, is in 

the position where her attacker can then abuse her in any other fashion sexually ... 

without incurring further sanctions for these separate and distinct crimes"); 

accord, Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981). 

Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31, 36, 37, 42 (1985) (en bane). 

Counsel correctly cited the principle that "Because in both of these cases the errors in question 

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' 

' . 

were patent, we determine that the trial courts had jurisdiction to correct the [illegal] sentences." 

Holmes, supra, A. 2d at 58 (2007). Here, however, there were no defects to correct. Wherefore, 

the court's denial of the defendant's third PCRA petition should be affirmed. 

BY THE COURT: 

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