J-S27007-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ANDRE ROBINSON

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1937 EDA 2016

Appeal from the PCRA Order May 13, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0210041-1988

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 16, 2017

Appellant, Andre Robinson, appeals pro se from the order entered in 

the Philadelphia Court of Common Pleas, which denied his second petition 

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546. On January 18, 1989, Appellant entered a negotiated guilty plea to 

first-degree murder and robbery. That same day, the court sentenced 

Appellant to life imprisonment without the possibility of parole. Appellant 

did not file a direct appeal. On April 12, 2002, Appellant filed his first PCRA 

petition, which was unsuccessful. On September 11, 2015, Appellant filed 

his second and current pro se PCRA petition. The PCRA court issued Rule 

907 notice on March 28, 2016, and dismissed the petition as untimely on 
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May 13, 2016. Appellant timely filed a pro se notice of appeal on June 9, 

2016. No Rule 1925(b) concise statement was ordered or filed. 

The timeliness of a PCRA petition is a jurisdictional requisite. 

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert. 

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA 

petition must 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 or at the expiration of 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). 

A petitioner asserting a timeliness exception must file a petition within sixty 

days of the date the claim could have been presented. 42 Pa.C.S.A. § 

9545(b)(2). Under the “new facts” exception to the PCRA’s timeliness 

requirements, the petitioner must plead and prove: “[T]he facts upon which 

the claim is predicated were unknown to the petitioner and could not have 

been ascertained by the exercise of due diligence[.]” 42 Pa.C.S.A. § 

9545(b)(1)(ii). When asserting the newly created constitutional right 

exception under Section 9545(b)(1)(iii), “a petitioner must prove that there 

is a ‘new’ constitutional right and that the right ‘has been held’ by that court 

to apply retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 

(Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012). 
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Instantly, Appellant’s judgment of sentence became final on February 

17, 1989, upon expiration of time to file an appeal to this Court. See

Pa.R.A.P. 903(a). Appellant filed his current petition on September 11, 

2015, over twenty-six years later; thus, the petition is patently untimely. 

See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new fact” 

exception to the PCRA time bar citing the U.S. Supreme Court’s decision in 

Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). 

Nevertheless, Alleyne does not amount to a “new fact” under Section 

9545(b)(1)(ii). See Commonwealth v. Brandon, 51 A.3d 231 (Pa.Super. 

2012) (holding subsequently decisional law is not “new fact” under Section 

9545(b)(1)(ii)). Appellant also fails to invoke the “new constitutional right” 

exception to the PCRA time bar because neither the U.S. Supreme Court nor 

the Pennsylvania Supreme Court has held that Alleyne or its progeny apply 

retroactively on collateral review. See Commonwealth v. Miller, 102 A.3d 

988 (Pa.Super. 2014) (holding that even if Alleyne announced new 

constitutional right, neither our Supreme Court nor United States Supreme 

Court has held that Alleyne applies retroactively on collateral review, which 

is fatal to appellant’s attempt to satisfy “new constitutional right” exception 

to timeliness requirements of PCRA). See also Commonwealth v. 

Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding Alleyne cannot 

render otherwise final sentence illegal). Further, Appellant’s reliance on 

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) 
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(ruling unconstitutional mandatory life without possibility of parole sentence 

for juvenile offenders), likewise fails because Appellant was twenty-two 

years old at the time of the offense. Therefore, Appellant’s second PCRA 

petition remains time-barred, and the court lacked jurisdiction to review it. 

See Hackett, supra. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/16/2017