J-S21034-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANNY ANDREWS,

Appellant No. 2411 EDA 2015

Appeal from the PCRA Order July 13, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0135221-1991; CP-51-CR-1238162-

1990

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 23, 2016

Appellant appeals pro se from the order entered in the Court of 

Common Pleas of Philadelphia County dismissing his third petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. The PCRA court dismissed the petition on the basis it was untimely 

filed. We affirm. 

The relevant facts and procedural history are as follows: Appellant 

was charged in separate criminal Informations with armed robberies of the 

office workers at three separate apartment buildings (Garden Court 

Apartments, Brynfield Court Apartments, and Korman Suites). A jury 

convicted him on five counts of robbery, two counts of criminal conspiracy, 
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and two counts of possessing an instrument of crime1 with regard to the 

Garden Court Apartments and Korman Suites robberies. The jury acquitted 

him of the offenses stemming from the Brynfield Court Apartments robbery. 

The trial court sentenced Appellant to an aggregate of 65 years to 130 

years in prison. On direct appeal, this Court affirmed Appellant’s convictions, 

but vacated and remanded for resentencing on the grounds that the trial 

court failed to refer to the applicable sentencing guideline ranges. 

Commonwealth v. Andrews, 641 A.2d 1218 (Pa.Super. 1993) 

(unpublished memorandum), appeal denied, 647 A.2d 895 (1994), cert. 

denied, 513 U.S. 1021 (1994). 

Upon remand, the trial court imposed the same term of imprisonment 

as before. Appellant filed an appeal, and in a published opinion, on October 

5, 1998, this Court affirmed the judgment of sentence. Commonwealth v. 

Andrews, 720 A.2d 764 (Pa.Super. 1998). The Supreme Court granted 

allowance of appeal and affirmed on March 26, 2001. Commonwealth v. 

Andrews, 564 Pa. 321, 768 A.2d 309 (2001). Appellant did not file a 

petition for a writ of certiorari with the U.S. Supreme Court.

On March 5, 2002, Appellant filed a timely first PCRA petition, and 

appointed counsel filed an amended PCRA petition. On September 28, 2004, 

the PCRA court dismissed Appellant’s first petition, and on December 28, 

____________________________________________

1 18 Pa.C.S.A. §§ 3701, 903, and 907, respectively. 
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2006, this Court affirmed. Commonwealth v. Andrews, 918 A.2d 781 

(Pa.Super. 2006) (unpublished memorandum). The Supreme Court denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Andrews, 

592 Pa. 764, 923 A.2d 1172 (2007). 

On March 31, 2011, Appellant filed a second pro se PCRA petition, and 

on October 24, 2011, the PCRA court dismissed Appellant’s second PCRA 

petition. On May 30, 2012, this Court affirmed. Commonwealth v. 

Andrews, 50 A.3d 253 (Pa.Super. 2012) (unpublished memorandum). 

On October 1, 2014, Appellant filed a third pro se PCRA petition, and 

on May 28, 2015, the PCRA court provided Appellant with notice of its intent 

to dismiss the petition under Pa.R.Crim.P. 907 on the basis it was untimely 

filed. Appellant filed a response, and by order entered on July 13, 2015, the 

PCRA court dismissed Appellant’s third PCRA petition on the basis it was 

untimely filed. Appellant filed a timely pro se notice of appeal, and the PCRA 

court subsequently filed an opinion. 

On appeal, Appellant presents the following issue:

Is the Appellant’s sentence a nullity in light of this Court’s ruling 

in Commonwealth v. Newman[, 99 A.3d 86 (Pa.Super. 2014) 

(en banc)] in which the mandatory sentencing statutes have 

been found to be facially unconstitutional? 

Appellant’s Brief.2 

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2 Appellant did not paginate his brief. 
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Preliminarily, we must determine whether Appellant’s third PCRA 

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50 

(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is 

clear; we are limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and 

quotation marks omitted).

Pennsylvania law makes it clear that no court has jurisdiction to hear 

an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective 

January 19, 1996, provide that a PCRA petition, including a second or 

subsequent petition, shall be filed within one year of the date the underlying 

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 

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 the time for seeking review.” 42 Pa.C.S.A. § 

9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:

(i) the failure to raise a claim previously was the result of 

interference by government officials with the 
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presentation of the claim in violation of the Constitution 

or the law of this Commonwealth or the Constitution or 

law 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 Pennsylvania after 

the time period provide in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

“We emphasize that it is the petitioner who bears the burden to allege 

and prove that one of the timeliness exceptions applies.” Commonwealth 

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation 

omitted).

Here, on October 5, 1998, this Court affirmed Appellant’s judgment of 

sentence, and the Supreme Court affirmed on March 26, 2001. Appellant 

did not file a petition for a writ of certiorari with the U.S. Supreme Court. 

Therefore, his judgment of sentence became final on Monday, June 25, 

2001, ninety days after our Supreme Court affirmed his judgment of 

sentence and the time for filing a petition for a writ of certiorari expired.3 

See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes final at the 

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3 The ninetieth day fell on Sunday, June 24, 2001, and thus, Appellant had 

until Monday, June 25, 2001, to file a petition for a writ of certiorari with the 

U.S. Supreme Court. 1 Pa.C.S.A. § 1908. 
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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[ ]”); U.S.Sup.Ct.R. 13 (providing “a 

petition for a writ of certiorari seeking review of a judgment of a lower state 

court that is subject to discretionary review by the state court of last resort 

is timely when it is filed with the Clerk within 90 days after entry of the 

order denying discretionary review[ ]”). Appellant, thus, had until 

approximately June 25, 2002, to file a timely PCRA petition. Appellant filed 

the instant PCRA petition on October 1, 2014, and therefore, it is patently 

untimely.

Appellant does not allege that any of the timeliness exceptions are 

applicable and, in fact, he avers “the Petitioner is not subject to any 

timeliness constraints[.]” Appellant’s Brief. Instead, he alleges that under 

Newman, supra his sentence is illegal and “resentencing is compulsory.” 

In essence, Appellant suggests his claim of legality of sentence cannot be 

waived on appeal. 

Claims of legality of sentence are generally nonwaivable. 

Commonwealth v. Brown, 71 A.3d 1009, 1010 (Pa.Super. 2013). 

However, the fact that such claims are not waived does not mean that we 

have jurisdiction to review them. Waiver and jurisdiction are separate 

matters. “Though not technically waivable, a legality [of sentence] claim 

may nevertheless be lost should it be raised for the first time in an untimely 
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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) (citation omitted). Here, Appellant’s third 

PCRA petition is untimely and no exception was proven. Therefore, the 

courts lack jurisdiction to consider the merits of the issues, including legality 

of sentence, presented in the petition.4 

For all of the foregoing reasons, we affirm.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2016

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4 Assuming, arguendo, Appellant’s argument may be characterized as an 

attempt to assert the “new constitutional right” exception to the PCRA timebar based on Newman, supra, we note that this Court’s decision in 

Newman, which was a direct appeal, rested almost entirely on the holding 

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

314 (2013). This Court has held that Alleyne does not apply retroactively 

to cases on collateral review. See Commonwealth v. Riggle, 119 A.3d 

1058 (Pa.Super. 2015); Commonwealth v. Miller, 102 A.3d 988 

(Pa.Super. 2014) (holding Alleyne did not announce new constitutional right 

that has been held to apply retroactively to satisfy PCRA’s time-bar 

exception). Accordingly, our decision in Newman would not render 

Appellant’s third PCRA petition timely filed pursuant to the exception.