J-S88022-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY R. SAUNDERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3743 EDA 2015

Appeal from the PCRA Order November 24, 2015

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0003314-2003

BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.: FILED JANUARY 31, 2017

Appellant, Gregory R. Saunders, appeals from the order entered 

November 24, 2015, denying as untimely his third1 petition filed under the 

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

Following a jury trial, Appellant was convicted of criminal conspiracy, 

burglary, robbery, and firearms not to be carried without a license.2 In 

November 2004, Appellant was sentenced to an aggregate term of 

incarceration of nineteen to thirty-eight years. In December 2004, Appellant 

filed a direct appeal. This Court affirmed the judgment of sentence. 

Commonwealth v. Saunders, 959 A.2d 468 (Pa. Super. 2008) 

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1 Both the Appellant and the PCRA court erroneously refer to the underlying 

petition as Appellant’s second PCRA petition. 

2 18 Pa.C.S. §§ 903(a)(1), 3502(a), 3701(a)(2), 6106(a)(1), respectively.
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(unpublished memorandum). Appellant did not file a petition for allowance 

of appeal with the Pennsylvania Supreme court. 

In December 2007, Appellant filed a petition for collateral relief, which 

was denied as premature. Appellant did not file an appeal. In September 

2008, Appellant filed his first PCRA petition, which was dismissed by this 

Court for failure to file a brief. Appellant’s second PCRA petition was filed in 

May 2012, which was denied as untimely; this Court affirmed. 

Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013), appeal 

denied, 72 A.3d 603 (Pa. 2013), cert. denied, 134 S. Ct. 944 (Jan. 13, 

2014). 

In December 2014, Appellant pro se filed the instant petition for 

collateral relief. The PCRA court appointed counsel; however, following a 

Grazier3 hearing Appellant was permitted to proceed pro se. In November 

2015, the PCRA court dismissed Appellant’s petition, and he timely appealed.

Appellant raises the following issues:

1. Did the PCRA court err in failing to review Appellant’s federal 

actual innocence/miscarriage of justice claim?

2. Did the PCRA court err in failing to review Appellant’s illegal 

sentence claim, as, an illegal sentence cannot be waived? 

Appellant’s Brief at 7.

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3 Commonwealth v. Grazier, 713 A.2d 81 (1998).
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The PCRA court dismissed Appellant’s petition without a hearing, and it 

appears from the record that proper Pa.R.Crim.P. 907 notice was not sent. 

There is no absolute right to an evidentiary hearing. See Commonwealth 

v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we 

examine the issues raised in light of the record “to determine whether the 

PCRA court erred in concluding that there were no genuine issues of material 

fact and denying relief without an evidentiary hearing.” Id. at 1264. 

Appellant does not challenge the lack of notice. Furthermore, “our Supreme 

Court has held that where the PCRA petition is untimely, the failure to 

provide such notice is not reversible error.” Commonwealth v. Davis, 916 

A.2d 1206, 1208 (Pa. Super. 2007) (citing Commonwealth v. Pursell, 749 

A.2d 911, 917 n. 7 (2000)). Accordingly, Appellant is due no relief on this 

ground.

The standard of review regarding an order denying a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Ragan, 

923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual findings 

deference unless there is no support for them in the certified record. 

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing 

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

Before considering Appellant’s claims, we address the timeliness of his 

petition, as it implicates our jurisdiction and may not be altered or 

disregarded in order to address the merits of his claim. Commonwealth v. 
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Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions 

seeking collateral relief must be filed within one year of the date the 

judgment of sentence becomes final. Id. There are three statutory 

exceptions:

(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 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)-(iii). Additionally, any petition attempting to 

invoke one of these exceptions “shall be filed within 60 days of the date the 

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Appellant’s petition is untimely.4 Thus, Appellant was required to 

plead and prove an exception to the PCRA timeliness requirements. 

Appellant does not dispute that his petition is untimely; rather, Appellant 

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4 Appellant’s petition is patently untimely. Appellant’s judgment of sentence 

became final on July 20, 2008; thirty days after this Court affirmed the 

judgment of sentence. See § 9545(b)(3) (a judgment of sentence becomes 

final at the conclusion of direct review or the expiration of the time for 

seeking review). Appellant’s current petition, filed December 10, 2014, is 

approximately six years late.
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acknowledges that he must avail himself of one of the exceptions set forth in 

section 9545(b)(1)(i)-(iii) in order for this Court to have jurisdiction to reach 

the merits of his claims. Bennett, 930 A.2d at 1267 (stating PCRA time 

limitations implicate our jurisdiction and may not be altered or disregarded 

to address the merits of the petition). 

In his PCRA petition Appellant asserts that his petition meets the afterdiscovered facts exception found at 42 Pa.C.S. § 9545(b)(1)(ii). To establish 

this exception, a petitioner must prove that the facts supporting his claim 

were (1) unknown to him and (2) could not have been ascertained 

previously by the exercise of due diligence. Bennett, 930 A.2d at 1270-72. 

Due diligence requires that the petitioner make reasonable steps to protect 

his own interest. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. 

Super. 2001).

Appellant asserts that his co-defendants would now testify that 

Appellant was not involved in the crime. Appellant provides no explanation 

as to why the testimony could not have been ascertained previously, in a 

timely matter. Furthermore, Appellant does not attach any documentation 

or evidence to substantiate this claim as required by Pa.R.Crim.P. 

902(a)(12)(b). Thus, Appellant’s assertion does not satisfy the afterdiscovered facts exception.

Appellant next challenges the legality of his sentence. Although illegal 

sentencing issues cannot be waived, they still must be presented in a timely 
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PCRA petition. Commonwealth v. Fahy, 737 A.2d 214 (Pa. 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.”). 

Accordingly, the PCRA court lacked jurisdiction to entertain Appellant’s 

claim and did not err in dismissing Appellant’s petition as untimely. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/2017