J-S30014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER A. LATORRE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2235 EDA 2022

Appeal from the PCRA Order Entered July 29, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009532-2007

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 8, 2023

Appellant, Christopher A. Latorre, appeals pro se from the postconviction court’s July 29, 2022 order denying, as untimely, his petition filed 

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

careful review, we affirm.

The facts of Appellant’s underlying convictions are not pertinent to our 

disposition of his present appeal. We only note that in April of 2008, Appellant 

was convicted, following a non-jury trial, of aggravated assault, recklessly 

endangering another person (REAP), terroristic threats, possession of an 

instrument of crime, conspiracy, and firearm violations. On June 11, 2008, 

the court sentenced him to an aggregate term of 191⁄2 to 39 years’ 

imprisonment, followed by 10 years’ probation. We affirmed his judgment of 

sentence, and our Supreme Court denied his subsequent petition for allowance 
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of appeal. See Commonwealth v. Latorre, 991 A.2d 358 (Pa. Super. 2010) 

(unpublished memorandum), appeal denied, 4 A.3d 1052 (Pa. 2010).

On March 4, 2011, Appellant filed his first, pro se PCRA petition. Counsel 

was appointed and filed an amended petition, raising several claims of trial 

counsel’s ineffectiveness, as well as an illegal sentencing claim. Ultimately, 

the PCRA court granted relief on the sentencing claim, vacating Appellant’s 

REAP sentence and resentencing him to no further penalty. Appellant’s 

aggregate sentence became 181⁄2 to 37 years’ incarceration. The PCRA court 

denied relief on Appellant’s remaining ineffectiveness claims, and he timely 

appealed. After this Court affirmed, our Supreme Court denied Appellant’s 

petition for allowance of appeal on September 3, 2014. See Commonwealth 

v. Latorre, 100 A.3d 303 (Pa. Super. 2014) (unpublished memorandum), 

appeal denied, 99 A.3d 76 (Pa. 2014).

On October 6, 2014, Appellant filed a “Petition for Writ of Habeas 

Corpus,” claiming that he was “denied the effective assistance of initial-review 

PCRA counsel” in various respects. Petition for Writ of Habeas Corpus, 

10/6/14, at 5. The trial court docket indicates that on November 9, 2015, a 

PCRA hearing was scheduled, and on January 7, 2016, Sandjai Weaver, Esq., 

was appointed to represent Appellant. However, the docket states that on 

January 8, 2016, the PCRA hearing was cancelled and Appellant’s counsel was 

‘relieved.’ 

On November 20, 2017, Appellant filed another, pro se PCRA petition, 

this time alleging newly-discovered evidence consisting of a recantation of a 
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Commonwealth witness. Counsel was appointed and filed an amended 

petition on Appellant’s behalf on July 16, 2018. On July 17, 2018, the court 

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition 

without a hearing. Although Appellant filed a response, on August 21, 2018, 

the court dismissed his petition. On appeal, this Court affirmed, and Appellant 

did not file a timely petition for allowance of appeal with our Supreme Court.1

See Commonwealth v. Latorre, 224 A.3d 770 (Pa. Super. 2019) 

(unpublished memorandum).

On June 22, 2021, Appellant filed a pro se “Motion to Correct Sentence 

Pursuant to Pa.R.Crim.P. 720 Nunc Pro Tunc[,]” which initiated the instant 

PCRA proceedings. On September 30, 2021, Appellant filed both a “Motion 

for Leave to Amend the Motion to Correct Sentence Pursuant to Pa.R.Crim.P. 

720 Nunc Pro Tunc,” as well as an “Amended Petition for Post-Conviction 

Collateral Relief Pursuant to 42 Pa.C.S.[] §§ 9541 et seq.” Therein, Appellant 

claimed that on September 2, 2020, he discovered from another inmate that 

his sentence exceeds the statutory maximum and is therefore illegal. 

Appellant also alleged that his attorney at his 2013 resentencing proceeding 

was ineffective for not challenging the legality of his sentence. Additionally, 

Appellant claimed that the Assistant District Attorney (ADA) who prosecuted 

his case admitted to several individuals that Appellant’s sentence is illegal, but 

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1 Appellant did, however, file an “Application for Permission to File a Petition 

for Allowance of Appeal Nunc Pro Tunc,” which the Supreme Court denied on 

October 13, 2020. See Commonwealth v. Latorre, No. 51 EDM 2020 (Pa. 

filed Oct. 13, 2020).
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that the ADA was refusing to take action to correct Appellant’s sentence, thus 

constituting governmental interference. Finally, Appellant stated that the 

Commonwealth had violated Brady v. Maryland, 373 US 83 (1963), by 

concealing a plea agreement it had offered to Appellant’s co-defendant. On 

December 22, 2021, Appellant filed a document purporting to again amend 

his PCRA petition, reiterating his illegal sentence and governmental 

interference claims.

On May 20, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of 

its intent to dismiss Appellant’s petition without a hearing, explaining in detail

that his petition was untimely and met no timeliness exception. See Rule 907 

Notice, 5/20/22, at 1-2 (unnumbered). Appellant filed a pro se response on 

June 9, 2022, raising, for the first time, an argument that the court should 

have treated his petition as an amendment of his October 6, 2014 “Petition 

for Writ of Habeas Corpus,” which Appellant claimed was never disposed of, 

and on which he was erroneously not appointed counsel. Additionally, on June 

11, 2022, Appellant filed a “Supplemental Petition for Post-Conviction 

Collateral Relief Pursuant to 42 Pa.C.S.[] §§ 954[1] et seq.,” raising, for the 

first time, a claim that a mandatory-minimum sentence applied in his case is 

illegal under Alleyne v. United States, 570 U.S. 99, 106 (2013) (holding 

that “facts that increase mandatory minimum sentences must be submitted 

to the jury” and found beyond a reasonable doubt). 

On July 29, 2022, the PCRA court issued an order and accompanying 

opinion dismissing Appellant’s petition. The court did not address Appellant’s 
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novel arguments that his petition was an amendment of his October 2014 writ 

of habeas corpus, or his illegality-of-sentencing claim under Alleyne. 

Appellant filed a timely notice of appeal on August 24, 2022. It does not 

appear that the PCRA court directed him to file a Pa.R.A.P. 1925(b) statement.

In lieu of a Rule 1925(a) opinion, the PCRA court transmitted to this Court a 

copy of its July 29, 2022 opinion accompanying its order dismissing Appellant’s 

petition.

Herein, Appellant states the following issues for our review:

[I.] Whether this case is ripe for appellate disposition when the 

PCRA [c]ourt did not answer all of the claims presented in 

Appellant[’s] ... Amended PCRA petition?

[II.] Whether the PCRA [c]ourt erred and abused its discretion 

when it denied and/or refused to rule on Appellant[’s] ... request 

to amend an unresolved PCRA petition, filed October 6, 2014, 

where: (1) it was Appellant’s first PCRA petition following 

resentencing; (2) the PCRA [c]ourt has not issued a final order 

granting or denying relief; (3) court records indicate it was timely 

filed; and (4) counsel had yet to be appointed and comply with 

the requirements of Turner/Finley?

[2]

[III.] Whether the PCRA [c]ourt erred and abused its discretion by 

declining to treat the [present] PCRA petition as an extension of a 

timely[-]filed[,] unresolved PCRA petition, thus constituting a 

breakdown in the judicial process?

[IV.] Whether the PCRA [c]ourt abused its discretion by declining 

to hold an evidentiary hearing where Appellant ... established the 

pleading requirements to trigger the newly[-]discovered facts 

exception to the PCRA statute’s limitation period but was unable 

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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to prove the evidentiary elements of the exception without record

development?

[V.] Whether the [PCRA c]ourt retains the inherent power to

correct Appellant[’s] ... illegal sentence where it involves the 

application of Alleyne ... and Appellant’s judgment of sentence 

had yet to become final at the time Alleyne was decided?

Appellant’s Brief at 3-4.

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). While we would typically begin by 

assessing the timeliness of Appellant’s petition, we first address his initial 

issue, in which Appellant contends that the PCRA court did not file an adequate 

Rule 907 notice or Rule 1925(a) opinion. Specifically, Appellant complains 

that the court failed to address his claims that his present petition is an 

amendment to his 2014 petition for writ of habeas corpus, or that his sentence 

is illegal under Alleyne. However, Appellant raised these claims after the 

court issued its Rule 907 notice, which was improper. 

The purpose of a Rule 907 pre-dismissal notice is to allow a 

petitioner an opportunity to seek leave to amend his petition and 

correct any material defects, the ultimate goal being to permit 

merits review by the PCRA court of potentially arguable claims. 

The response to the Rule 907 notice is an opportunity for a 

petitioner and/or his counsel to object to the dismissal and alert 

the PCRA court of a perceived error, permitting the court to 

discern the potential for amendment. 

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015) (citations 

and quotation marks omitted). “This does not mean that a defendant may 

raise entirely new claims that he could have presented prior to his response
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to the notice of intent to dismiss.” Commonwealth v. Rykard, 55 A.3d 

1177, 1189 n.8 (Pa. Super. 2012). Rather, “the response is not itself a 

petition[,] and the law still requires leave of court to submit an amended 

petition.” Id. at 1189 (citing Pa.R.Crim.P. 905(A)).

The Rules of Criminal Procedure contemplate that amendments to 

pending PCRA petitions are to be “freely allowed to achieve 

substantial justice,” Pa.R.Crim.P. 905(A), but Rule 905 

amendments are not “self-authorizing” such that a petitioner may 

simply “amend” a pending petition with a supplemental pleading. 

Rather, the Rule explicitly states that amendment is permitted 

only by direction or leave of the PCRA court.

Commonwealth v. Mason, 130 A.3d 601, 621 n.19 (Pa. 2015) (some 

citations and quotation marks omitted).

Instantly, the PCRA court issued notice of its intent to dismiss 

Appellant’s PCRA petition on May 20, 2020. The notice did not direct or permit 

Appellant to amend his PCRA petition to include new claims. Nevertheless, 

Appellant raised, in his Rule 907 response and a supplemental PCRA petition, 

his novel claims that his present petition should be considered an amendment 

to his writ of habeas corpus filed in 2014, and that his sentence is illegal under 

Alleyne. Both these claims could have been raised before the PCRA court 

issued its Rule 907 notice but were not. Thus, the court was under no 

obligation to issue a new Rule 907 notice reviewing the merits of these new 

issues, or to address them in its opinion filed on July 29, 2022, which satisfied 

Rule 1925(a). Therefore, Appellant’s first issue is meritless.

We next address the timeliness of Appellant’s petition, because the 

PCRA time limitations implicate our jurisdiction and may not be altered or 
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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 post-conviction 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;

(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, section 9545(b)(2) requires that 

any petition attempting to invoke one of these exceptions “be filed within one 

year of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2).
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Here, Appellant’s original sentence was imposed on June 11, 2008, and, 

after this Court affirmed, our Supreme Court denied his petition for allowance 

of appeal on August 12, 2010. Thus, his judgment of sentence became final 

on November 10, 2010. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment 

of sentence becomes final at the conclusion of direct review or the expiration 

of the time for seeking the review); Commonwealth v. Owens, 718 A.2d 

330, 331 (Pa. Super. 1998) (directing that under the PCRA, petitioner’s 

judgment of sentence becomes final ninety days after our Supreme Court 

rejects his or her petition for allowance of appeal since petitioner had ninety 

additional days to seek review with the United States Supreme Court). 

Appellant, however, contends that his 2013 resentencing essentially 

reset the clock for PCRA purposes. We note that this Court has held that

a successful [] PCRA petition does not “reset the clock” for the 

calculation of the finality of the judgment of sentence for purposes 

of the PCRA where the relief granted in the [] petition neither

restored a petitioner’s direct appeal rights nor disturbed

his conviction, but, rather, affected his sentence only. We 

reached this conclusion because the purpose of the PCRA is to 

prevent an unfair conviction.

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) 

(emphasis added) (citing Commonwealth v. Dehart, 730 A.2d 991, 994 n.2 

(Pa. Super. 1999)). Notwithstanding, even if Appellant were correct that his

2013 resentencing effectively reset the PCRA clock, his present petition was 

not filed until 2021 and, thus, is still patently untimely. 

In an attempt to avoid this facial untimeliness of his present petition, 

Appellant insists, in his second and third issues on appeal, that his present 
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petition is timely because it is simply an amendment to his timely-filed October 

6, 2014 petition for writ of habeas corpus. According to Appellant, his writ of 

habeas corpus should have been treated as a timely-filed PCRA petition 

because it was filed within one year of his 2013 resentencing. Further, he 

contends that the writ of habeas corpus was still outstanding at the time he 

filed his present petition and, thus, his instant petition should have been 

treated as an amendment to that timely-filed writ of habeas corpus. Appellant

also avers that because the writ constituted his first, timely PCRA petition filed 

after his resentencing, he is entitled to the appointment of counsel herein.

We disagree. Even accepting, for argument sake, that Appellant’s 

October 6, 2014 writ of habeas corpus constituted a timely-filed, first PCRA 

petition, Appellant nevertheless waived his claim that his instant petition is an 

amendment thereto. As discussed above, Appellant litigated another PCRA 

petition in 2017, between his 2014 writ of habeas corpus and his instant 

PCRA petition. He made no mention in his 2017 petition that his 2014 writ of 

habeas corpus was still outstanding. Furthermore, if any PCRA petition 

constituted an “amendment” of his ostensibly outstanding, 2014 writ of 

habeas corpus, it was his 2017 petition. Appellant was appointed counsel 

throughout the 2017 post-conviction proceedings, as well as his appeal from 

the denial of that petition. Consequently, we do not consider the present 

petition as timely under Appellant’s theory that it is an amendment of his 2014 

writ of habeas corpus, and he is not entitled to the appointment of counsel.
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Appellant has also failed to demonstrate that any timeliness exception 

applies to his instant petition. For instance, Appellant argues, in his fourth 

issue on appeal, that his petition meets the newly-discovered-fact exception 

of section 9545(b)(1)(ii). In support, he contends that in November of 2020, 

the ADA who prosecuted his case “admitted” to several individuals “that 

Appellant is serving an illegal sentence, however, [he] claimed he could not 

correct it without following the proper procedures.” Appellant’s Brief at 35. 

Appellant claims that the ADA’s admission that his sentence is illegal 

constitutes a “new fact” that was previously unknown to him. 

Even if true, Appellant wholly fails to demonstrate that he acted with 

due diligence in discovering this “new fact.” Aside from cursorily stating that 

the alleged illegality of his sentence was “undiscoverable through the exercise 

of due diligence[,]” id. at 36, Appellant offers no discussion of why he could 

not have discerned the purported illegality in his sentence sooner. Indeed, 

Appellant does not even explain to this Court how or why his sentence is 

illegal.3 Thus, Appellant has not demonstrated that the newly-discovered-fact 

exception applies to his claim.

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3 According to the Commonwealth’s reading of Appellant’s underlying petition, 

he believes that his sentence is “unlawful because he allegedly was sentenced 

concurrently for two inchoate crimes that stem from the same conduct in 

violation of 18 Pa.C.S. § 906.” Commonwealth’s Brief at 9. In explaining why 

this argument is meritless, the Commonwealth provides:

Section 906 states: “a person may not be convicted of more than 

one of the inchoate crimes of criminal attempt, criminal solicitation 

(Footnote Continued Next Page)
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In his final issue, Appellant contends that a five-year, mandatoryminimum sentence under 42 Pa.C.S. § 9712(a) that was imposed in this case

is illegal under Alleyne.

4,5 Although Appellant does not specify which 

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or criminal conspiracy for conduct designed to commit or to 

culminate in the commission of the same crime.” [Appellant] was 

sentenced for the crimes of aggravated assault, possession of an 

instrument of crime, and conspiracy. The only sentence

[Appellant] faces for which Section 906 applies is conspiracy. 

Therefore, [Appellant’s] claim is ultimately meritless.

Id. 

4 That section states:

(a) Mandatory sentence.--Except as provided under section 

9716 (relating to two or more mandatory minimum sentences 

applicable), any person who is convicted in any court of this 

Commonwealth of a crime of violence as defined in section 

9714(g) (relating to sentences for second and subsequent 

offenses), shall, if the person visibly possessed a firearm or a 

replica of a firearm, whether or not the firearm or replica was 

loaded or functional, that placed the victim in reasonable fear of 

death or serious bodily injury, during the commission of the 

offense, be sentenced to a minimum sentence of at least five years 

of total confinement notwithstanding any other provision of this 

title or other statute to the contrary. Such persons shall not be 

eligible for parole, probation, work release or furlough.

5

In the Commonwealth’s appellate brief, it contends that no mandatoryminimum was applied in Appellant’s case. See Commonwealth’s Brief at 8. 

However, in Appellant’s reply brief, he claims that this is a misrepresentation 

that constitutes “fraud upon this [C]ourt....” Appellant’s Reply Brief at 8 

(emphasis omitted). On June 2, 2023, the Commonwealth filed a “Petition for 

Leave to File a Sur-Reply Brief,” along with the sur-reply brief it sought to file,

conceding that Appellant was sentenced under 42 Pa.C.S. § 9712, but stating 

that he is still not entitled to retroactive application of Alleyne. On June 22, 

2023, Appellant filed a “Motion to Concede the Granting of the 

Commonwealth’s Sur-Reply Brief In Part,” stating that he agrees with this 

Court’s accepting the Commonwealth’s sur-reply brief to the extent the 

(Footnote Continued Next Page)
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timeliness exception his argument satisfies, we presume that he is attempting

to meet the ‘new-retroactive-right’ exception of section 9545(b)(1)(iii). 

No relief is due. As this Court has declared, “[i]t is ... settled that 

Alleyne does not invalidate a mandatory[-]minimum sentence when 

presented in an untimely PCRA petition.” Commonwealth v. Ruiz, 131 A.3d 

54, 58 (Pa. Super. 2015) (citation and emphasis omitted) (citing 

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014)). The Ruiz panel

explained:

In concluding Alleyne does not satisfy the new retroactive 

constitutional right exception to the PCRA’s one year time bar, 42 

Pa.C.S. § 9545(b)(1)(iii), the Miller Court explained:

Even assuming that Alleyne did announce a new 

constitutional right, neither our Supreme Court, nor the 

United States Supreme Court has held that Alleyne is to be 

applied retroactively to cases in which the judgment of

sentence had become final. This is fatal to [the a]ppellant’s 

argument regarding the PCRA time-bar. This Court has 

recognized that a new rule of constitutional law is applied 

retroactively to cases on collateral review only if the United 

States Supreme Court or our Supreme Court specifically 

holds it to be retroactively applicable to those cases.

Id. at 995 (citations omitted).... Furthermore, this Court also 

recently declined to give Alleyne retroactive effect to cases on 

timely collateral review when the defendant’s judgment of 

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Commonwealth concedes he was sentenced under section 9712. However, 

Appellant disputes the Commonwealth’s argument that Alleyne does not 

apply retroactively to his case. Accordingly, he asks that we either remand 

his case for further consideration of his Alleyne claim by the PCRA court, or 

vacate his sentence under the rationale of Alleyne and remand for 

resentencing. For the reasons set forth infra, Alleyne does not apply 

retroactively to Appellant’s case, and does not overcome the untimeliness of 

his petition. Accordingly, we deny the relief he requests in his “Motion to 

Concede the Granting of the Commonwealth’s Sur-Reply Brief In Part.”
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sentence was finalized before Alleyne was decided. See

Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015).

Ruiz, 131 A.3d at 58 (emphasis in original).

Here, Appellant clearly cannot rely on Alleyne to meet the timeliness

exception of section 9545(b)(1)(iii). We also reject his claim that he is entitled 

application of Alleyne because his “case was pending on direct review, 

following imposition of his new sentence,” when Alleyne was issued. 

Appellant’s Brief at 38. Appellant was resentenced on January 24, 2013. He 

did not file an appeal from that judgment of sentence; instead, he filed a 

notice of appeal from the PCRA court’s denial of his other collateral claims. 

Thus, his January 24, 2013 judgment of sentence became final on Monday, 

February 25, 2013. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence 

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

for seeking the review); Pa.R.A.P. 903(a) (requiring notice of appeal to “be 

filed within 30 days after the entry of the order from which the appeal is 

taken”); see also 1 Pa.C.S. § 1908 (“When any period of time is referred to 

in any statute, such period in all cases...shall be so computed as to exclude 

the first and include the last day of such period. Whenever the last day of any 

such period shall fall on a Saturday or Sunday, or on any day made a legal 

holiday by the laws of this Commonwealth or of the United States, such day 

shall be omitted from the computation.”). Alleyne was decided on June 17, 

2013. Thus, Alleyne was decided several months after Appellant’s judgment 

of sentence became final. As it is clear that Alleyne does not apply 
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retroactively to untimely (or even timely) PCRA petitions, Appellant cannot 

obtain sentencing relief under Alleyne.

Order affirmed.

Date: 11/8/2023