J-S33012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE MURRAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2240 EDA 2017

Appeal from the Order Entered May 19, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011666-2008

BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED AUGUST 06, 2018

Andre Murray appeals, pro se, from the order entered May 19, 2017, 

dismissing his petition for writ of habeas corpus, which the trial court 

construed to be an untimely PCRA1 petition. Murray seeks relief from the 

judgment of sentence of 20 to 40 years’ imprisonment imposed on February 

17, 2010, following his jury conviction of attempted murder, aggravated 

assault, criminal conspiracy, and possession of an instrument of crime

(“PIC”).

2

 On appeal, Murray contends his sentence is illegal because it was 

based upon an unconstitutional mandatory minimum statute, and he has a 

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 Former Justice specially assigned to the Superior Court.

1 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2 See 18 Pa.C.S. §§ 903/2502(a), 2701(a), 903(a), and 907(a), respectively.
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“valid claim of being innocent of the sentence imposed upon him.” Murray’s 

Brief at 3. For the reasons below, we affirm.

The facts underlying Murray’s conviction are well known to the parties 

and we need not reiterate them herein. In summary, after Murray was 

convicted of the above-stated charges, the trial court sentenced him on 

February 17, 2010, to a term of 20 to 40 years’ imprisonment for the charge 

of attempted murder, and a concurrent term of one to two years’ 

imprisonment for the charge of PIC. Murray’s judgment of sentence was 

affirmed by this Court on November 12, 2011, and the Pennsylvania Supreme 

Court subsequently denied his petition for appeal. See Commonwealth v. 

Murray, 38 A.3d 926 (Pa. Super. 2011) (unpublished memorandum), appeal 

denied, ___ A.3d ___ (73 EAL 2012) (Pa. 2012). 

Murray filed a timely PCRA petition on July 26, 2013, which the PCRA 

court later dismissed. A panel of this Court affirmed the dismissal order on 

November 14, 2015, and, once again, the Supreme Court denied review. See 

Commonwealth v. Murray, 134 A.3d 479 (Pa. Super. 2015) (unpublished 

memorandum), appeal denied, 141 A.3d 479 (Pa. 2016). Murray then filed a 

second PCRA petition challenging the legality of his sentence under Alleyne 

v. United States, 570 U.S. 99 (2013).3 The PCRA court dismissed the 

petition as untimely filed.

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3

In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, 

increases the penalty for a crime is an ‘element’ that must be submitted to 
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Thereafter, on March 27, 2017, Murray filed the instant request for 

relief, which he styled as a petition for writ of habeas corpus. On April 12, 

2017, the trial court issued notice of its intent to dismiss the petition as an 

untimely filed PCRA. Although Murray filed a pro se response, the court 

ultimately dismissed the petition on May 19, 2017. This timely appeal 

followed.4 

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). 

Upon our review of Murray’s pro se brief, it is unclear whether he 

disputes the court’s determination that his petition for habeas corpus relief 

should be construed as a PCRA petition. Nevertheless, we find the court’s 

decision was proper. It is well-settled the PCRA is “the sole means of obtaining 

collateral relief,”5 and “if the underlying substantive claim is one that could 

potentially be remedied under the PCRA, that claim is exclusive to the PCRA.” 

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the jury and found beyond a reasonable doubt.” Alleyne, supra, 570 U.S. at 

103. In interpreting that decision, the courts of this Commonwealth have 

determined that most of our mandatory minimum sentencing statutes are 

unconstitutional. See Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 

2015); Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. (Pa. Super. 

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). 

4 The trial court did not direct Murray to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

5 42 Pa.C.S. § 9542.
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Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004), cert. 

denied, 546 U.S. 909 (2005) (emphasis in original). Moreover, “[i]ssues that 

are cognizable under the PCRA must be raised in a timely PCRA petition and 

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor, 

65 A.3d 462, 466 (Pa. Super. 2013).

Here, Murray challenges the legality of his sentence under Alleyne. 

Such a claim is cognizable under the PCRA. See Commonwealth v. 

DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (holding challenge to mandatory 

minimum sentence under Alleyne is an illegal sentencing claim cognizable 

under the PCRA). Accordingly, the trial court correctly construed Murray’s 

request for relief to be a PCRA petition, and, thus, subject to the PCRA’s timing 

requirements. Moreover, the court found Murray’s petition was untimely filed, 

and his claim was previously litigated: 

[Murray] has already filed a PCRA petition raising exactly the same 

ground for relief. That petition, which was filed on August 30, 

2016, was dismissed by the Court on the ground that it was 

untimely filed. Because the instant Petition was not filed until 

March 27, 2017, approximately seven months later, it is a fortiori

untimely as well. 

Trial Court Order, 4/12/2017, at 1-2. We agree. Murray failed to plead or 

prove the applicability of any of the time for filing exceptions. See 42 Pa.C.S. 

§ 9454(b).

It appears Murray’s argument on appeal is simply that because the

mandatory minimum statute under which he was sentenced has been declared 

unconstitutional, his sentence is null and void, despite any procedural 
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challenges. See Murray’s Brief at 1-2. Further, he insists that if he were 

compelled to “continue to serve an illegal sentence that is patent and obvious 

on the face of the court record, [it] would be a fundamental miscarriage of 

justice[.]” Id. at 3.

However, it is axiomatic that all claims, including those implicating the 

legality of a sentence or asserting a miscarriage of justice, “must still first 

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

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Particularly with 

respect to Alleyne claims, our Supreme Court has held that relief is available 

under the PCRA only if the petitioner’s judgment of sentence was not final at 

the time Alleyne was decided and the petitioner presented his claim in a 

timely PCRA petition. See DiMatteo, supra, 171 A.3d at 192. Murray meets 

neither criteria, and, consequently, is entitled to no relief.6

Order affirmed.

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6 We note, too, that our review of the record reveals Murray was not sentenced 

pursuant to any of our now unconstitutional mandatory minimum statutes. 

See N.T., 2/17/2010 at 28; Court Commitment Order, 2/17/2010. Rather, 

the court imposed a standard range guideline sentence, which was increased 

pursuant to the deadly weapon enhancement, a statutory scheme that does 

not implicate Alleyne. See Commonwealth v. Shull, 148 A.3d 820, 830

n.6 (Pa. Super. 2016). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/6/18