J-S59014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYRONE MANUEL,

Appellant No. 3010 EDA 2016

Appeal from the PCRA Order Entered August 12, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0700481-2002

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 07, 2017

Appellant, Tyrone Manuel, appeals pro se from the post-conviction 

court’s August 12, 2016 order denying, as untimely, his second petition 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

We affirm. 

The facts of Appellant’s underlying convictions are unnecessary to our 

disposition of his appeal. The PCRA court summarized the procedural history 

of his case as follows:

On October 24, 2002, following a bench trial before this 

[c]ourt, [Appellant] ... was found guilty of robbery (F-1), carrying 

a firearm without a license (F-3), and carrying a firearm on [a] 

public street[] in Philadelphia (M-1).2 Sentencing was deferred 

until January 31, 2003, at which time [Appellant] was sentenced 

to the mandatory term3 of not less than 25 nor more than 50 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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years in prison. [Appellant] did not file post-sentence motions, 

but [he] filed a timely notice of appeal to the Superior Court. On 

August 20, 2004, the Superior Court affirmed [Appellant’s] 

judgment of sentence.5

2 18 Pa.C.S. §§ 3701(a)(1), 6101, and 6108, respectively.

3 [Appellant] was sentenced pursuant to the three strikes 

provision in 42 Pa.C.S. § 9714(2).

5 Commonwealth v. Manuel, 860 A.2d 1131 (Pa. Super. 

2004).

On August 11, 2005, [Appellant] filed a timely pro se ... 

[]PCRA[] petition. Counsel was appointed, and on February 15, 

2006, [counsel] filed an amended petition. The Commonwealth 

responded on April 26, 2006. On July 13, 2006, having reviewed 

the record and filings, this [c]ourt sent [Appellant] notice of its 

intent to deny and dismiss his PCRA petition without a hearing 

pursuant to Pa.R.Crim.P. 907 (907 Notice). [Appellant’s] PCRA 

petition was dismissed consistent with this [c]ourt’s 907 Notice 

on August 11, 2006. Thereafter, [Appellant] filed a timely notice 

of appeal to the Superior Court. On August 14, 2007, the 

Superior Court affirmed the dismissal of [Appellant’s] PCRA 

petition, and on March 25, 2008, our Supreme Court denied 

[Appellant’s] petition for allowance of appeal.8

8 Commonwealth v. Manuel, [935 A.2d 16 (Pa. Super. 

2007) (unpublished memorandum), appeal denied, 945 

A.2d 168 (Pa. 2008)].

On March 18, 2016, [Appellant] filed an untimely pro se 

PCRA petition, his second. Having determined that [Appellant] 

failed to satisfy his burden of proof in showing that his claim 

satisfied any of the timeliness exceptions enumerated in 42 

Pa.C.S. § 9545(b)(1), this [c]ourt sent [Appellant] a 907 Notice 

on June 29, 2016. On August 12, 2016, this [c]ourt dismissed 

[Appellant’s] PCRA petition as untimely, consistent with its 907 

Notice. This timely appeal followed.

PCRA Court Opinion (PCO), 3/24/17, at 1-2 (some footnotes omitted).

After Appellant filed his notice of appeal, the PCRA court directed him 

to file a Pa.R.A.P. 1925(b) statement and he timely complied. The court 
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then filed a Rule 1925(a) opinion. Herein, Appellant raises one issue for our 

review: “Did the lower court sentence Appellant to a mandatory minimum 

sentence absent any jurisdiction to do so, resulting in an illegal sentence?” 

Appellant’s Brief at 6.

This Court’s 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 must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded in order to 

address the merits of a petition. See Commonwealth v. Bennett, 930 

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for postconviction relief, including a second or subsequent one, must be filed within 

one year of the date the judgment of sentence becomes final, unless one of 

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition 

alleges and the petitioner proves that: 

(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). 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).

Here, Appellant’s judgment of sentence became final in 2004, and 

thus, his current petition filed in 2016 is clearly untimely. For this Court to 

have jurisdiction to review the merits thereof, Appellant must prove that he 

meets one of the exceptions to the timeliness requirements set forth in 42 

Pa.C.S. § 9545(b). 

Appellant wholly fails to meet this burden, as he does not specifically 

argue that any of the above-stated timeliness exceptions applies to his case. 

Instead, he avers that the mandatory minimum sentence imposed in his 

case pursuant to 42 Pa.C.S. § 9714(a)(2) is illegal for several reasons, 

including this Court’s decision in Commonwealth v. Armstrong, 74 A.3d 

228, 242 (Pa. Super. 2013) (holding that Armstrong could not be sentenced 

as a ‘third-strike’ offender under section 9714(a)(2) where he had not yet 

been convicted or sentenced for his ‘first-strike’ offense when he was 

arrested for his ‘second-strike’ crime). Appellant asserts that his case 

mirrors Armstrong and, thus, because he is serving an illegal sentence, we 
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have jurisdiction to grant him relief regardless of the untimeliness of his 

PCRA petition. Appellant’s Brief at 14.

Unfortunately for Appellant, we cannot review the merits of his 

argument, even though it implicates the legality of his sentence. While 

claims challenging the legality of sentence are subject to review within the

PCRA, the petitioner must first satisfy the PCRA’s timeliness requirements. 

See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Here, 

Appellant’s current petition is patently untimely, and he has offered no 

discussion of which of the above-stated timeliness exceptions he meets. 

Moreover, his reliance on our decision in Armstrong does not satisfy 

the timeliness exception of section 9545(b)(1)(iii), as Armstrong did not 

recognize a new constitutional right, and it has not been held to apply 

retroactively. See Commonwealth v. Ross, 140 A.3d 55, 58 (Pa. Super. 

2016) (stating that, to demonstrate the applicability of 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”) 

(citation omitted). Additionally, Armstrong was decided in July of 2013, 

and Appellant did not file his current petition until 2016; thus, he failed to 

meet the 60-day requirement of section 9545(b)(2).

Consequently, Appellant has failed to prove that any timeliness 

exception applies to his untimely-filed PCRA petition. Therefore, the PCRA 

court did not err in dismissing it. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/2017