J-S66007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MICHAEL SPADAFORA

Appellant No. 1412 MDA 2015

Appeal from the PCRA Order July 17, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005779-2008

BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016

Michael Spadafora appeals from the July 17, 2015 order dismissing his 

second PCRA petition. We affirm. 

Appellant manufactured and sold several pounds of methamphetamine 

between 2007 and 2008, and, after an investigation by the Pennsylvania

Office of Attorney General, was charged with multiple offenses. On June 22, 

2009, he tendered a negotiated guilty plea to one count each of corrupt 

organizations, delivery of a controlled substance, manufacture of a 

controlled substance, and a firearms violation. Pursuant to the agreement, 

Appellant was sentenced to eight to twenty years imprisonment pursuant to 

a mandatory minimum sentence outlined in 18 Pa.C.S. § 7508(a) and 

applicable to the drug offenses due to the weight of the methamphetamine, 

2000 grams, involved. On appeal, we affirmed, Commonwealth v. 
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Spadafora, 23 A.3d 1082 (Pa.Super. 2011) (unpublished memorandum), 

and our Supreme Court denied review on September 26, 2011. 

Commonwealth v. Spadafora, 29 A.3d 797 (Pa. 2011). On January 13, 

2012, Appellant filed a counseled petition for post conviction relief, which 

was denied. On appeal, we affirmed. Commonwealth v. Spadafora, 87 

A.3d 391 (Pa.Super. 2013), appeal denied, 89 A.3d 1284 (Pa. 2014). 

On June 2, 2014, Appellant filed a second counseled PCRA petition 

seeking relief under Alleyne v. United States, 133 S.Ct. 2151 (2013). In

Alleyne, the United States Supreme Court held that any fact, other than the 

existence of a prior conviction, that invokes application of a mandatory 

minimum sentence must be submitted to a jury and proven beyond a 

reasonable doubt. In Commonwealth v. Mosley, 114 A.3d 1072 (Pa. 

2015), we held § 7508(a) was unconstitutional under Alleyne. On July 17, 

2015, Appellant’s second PCRA petition was dismissed as untimely filed. 

This appeal followed. Appellant was ordered to file a Pa.R.A.P. 1925(b) 

statement, but did not comply with that order. After successfully petitioning 

for a remand, he filed a Pa.R.A.P. 1925(b) statement and raised the Alleyne

issue. 

We first note the following. Appellant’s Statement of the Questions 

Involved, which must be included in a brief under Pa.R.A.P. 2116, is 

inconsistent with the actual argument raised in his brief. In his Pa.R.A.P. 

2116 statement, Appellant presents this issue: “Whether the trial court erred 
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in denying the Appellant’s post-conviction relief act petition where the 

Appellant’s plea was not knowing and voluntary where it was revealed after 

his plea that the police officers involved in his arrest [were] subsequently 

prosecuted for selling narcotics.”1 Appellant’s brief at 5. In the argument 

portion of his brief, however, Appellant reiterates the position raised in the 

second PCRA petition that his sentence is illegal under Alleyne and that he 

should either be afforded the opportunity to withdraw his plea or accorded a 

new sentencing hearing. Id. at 12. Appellant also notes that Alleyne

issues cannot be waived. We will consider the Alleyne position, even 

though it was not presented in his Statement of Questions Involved,2since 

we agree that challenges to legality of sentences issues cannot be waived. 

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 2014) (“a 

____________________________________________

1 We also observe that the Commonwealth maintains that this statement is 

“outrageously false and not the facts of this case.” Commonwealth’s brief at 

6. In footnote one, the Commonwealth asks that Appellant’s brief not be 

accessible electronically so that the agents involved herein are not 

associated with this untrue statement. The briefs filed in this Court are 

available electronically only to court employees, and we cannot control the 

dissemination of its contents by other websites. 

However, we can allay the Commonwealth’s indignation with the following 

observations. The accusation leveled against the agents involved in this 

matter has no apparent connection to this case. Furthermore, the charge is 

unsupported by the record and was never presented to the lower court. We 

can only conclude that it relates to another criminal case and disapprove of 

its inclusion in Appellant’s brief herein.

 

2

 See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated 

in the statement of questions involved or is fairly suggested thereby.”). 
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challenge to the legality of the sentence [,which includes an Alleyne claim,] 

can never be waived and may be raised by this Court sua sponte”), aff’d on 

different grounds, 140 A.3d 651 (Pa. 2016).3 

This Court reviews the “denial of PCRA relief to determine whether the 

findings of the PCRA court are supported by the record and free of legal 

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016) 

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). We 

must first determine, however, whether Appellant’s June 2, 2014 PCRA 

petition was timely filed because that issue implicates our jurisdiction and its 

untimeliness was the basis for the PCRA court’s dismissal. If a PCRA petition 

is untimely, “neither this Court nor the trial court has jurisdiction over the 

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) 

(citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 522 

(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the trial 

court has jurisdiction over the petition. Without jurisdiction, we simply do 

not have the legal authority to address the substantive claims.”). We also 

note that, even though Appellant’s Alleyne contention cannot be waived, it 

nevertheless must be presented in a timely PCRA petition. Commonwealth 

____________________________________________

3 We are aware that our Supreme Court has granted allowance of appeal to 

decide this issue, i.e.: “[w]hether a challenge to a sentence pursuant to 

Alleyne v. United States, U.S. , 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013), implicates the legality of the sentence and is therefore nonwaivable.” Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015).
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v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is 

always subject to review within the PCRA, [such a claim] must still first 

satisfy the PCRA's time limits or one of the exceptions thereto.”). 

Any PCRA petition has to be filed within one year of the date the 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we now 

calculate when Appellant’s judgment of sentence became final. “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.” 42 

Pa.C.S. § 9545(b)(3). Appellant’s petition for allowance of appeal was 

denied on September 26, 2011, and, since he did not seek review with the 

United States Supreme Court, his judgment of sentence became final ninety 

days thereafter, or on December 25, 2011. Miller, supra (where our 

Supreme Court denies allowance of appeal and no further review is sought, a 

defendant’s sentence becomes final when the ninety-day period for filing a 

petition for a writ of certiorari expires). Since December 25th is a holiday, 

Appellant had until December 26, 2012, to file a timely PCRA petition. The 

instant petition, presented on June 2, 2014, is untimely. 

There are three exceptions to the one-year time bar of § 9545:

(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;
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(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-iii). 

Herein, Appellant maintains that Alleyne clearly announced a new 

constitutional rule and that it should be applied to his case. Appellant’s brief 

at 13. This argument implicates the after-discovered constitutional right 

exception. However, our Supreme Court recently ruled that Alleyne does 

not apply retroactively. Commonwealth v. Washington, 142 A.3d 810 

(Pa. 2016). Since Alleyne is not retroactive, Appellant’s assertion fails to 

overcome the PCRA’s time bar. See Miller, supra. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016