J-S69039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARL MUHAMMAD,

Appellant No. 788 EDA 2015

Appeal from the PCRA Order of March 2, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0145731-1990

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY OLSON, J.: FILED JANUARY 12, 2016

Appellant, Carl Muhammad, appeals from the order entered on March 

2, 2015, dismissing as untimely his second petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

We briefly summarize the facts and procedural history of this case as 

follows. In August 1989, police arrested Appellant after he sold cocaine, 

with the assistance of a co-defendant, to an undercover agent. In a search 

incident to his arrest, police recovered two firearms, ammunition, cocaine, 

marijuana, and pre-recorded currency used in the undercover drug 

transaction. On December 19, 1990, a jury convicted Appellant of 

possession with intent to deliver a controlled substance, criminal conspiracy, 

possession of an instrument of crime, and attendant firearms violations. On 

September 11, 1991, the trial court sentenced Appellant to an aggregate 
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term of eight to 25 years of imprisonment. On January 11, 1993, this Court 

affirmed Appellant’s judgment of sentence. See Commonwealth v. 

Muhammad, 626 A.2d 647 (Pa. Super. 1993) (unpublished memorandum). 

Our Supreme Court denied further review on November 10, 1993. See 

Commonwealth v. Muhammad, 634 A.2d 1115 (Pa. 1993).

Appellant filed a pro se PCRA petition on July 30, 1996. Appointed 

counsel filed an amended petition that the PCRA court denied on October 24, 

1997. We affirmed that decision. See Commonwealth v. Muhammad, 

737 A.2d 809 (Pa. Super. 1999) (unpublished memorandum). Our Supreme 

Court denied further review on July 22, 1999. See Commonwealth v. 

Muhammad, 740 A.2d 231 (Pa. 1999).

On March 12, 2014, Appellant filed a pro se PCRA petition. He filed a 

supplemental pro se PCRA petition on July 1, 2014. The PCRA court 

reviewed them together.1 On December 16, 2014, the PCRA court sent 

Appellant notice of its intent to dismiss the PCRA petitions without an 

evidentiary hearing pursuant to Pa.R.Crim.P. 907. On March 2, 2015, the 

PCRA court entered an order dismissing Appellant’s PCRA petitions as 

____________________________________________

1

 Upon our review of the PCRA petitions presented, Appellant claimed that 

his sentence was illegal because: (1) the Commonwealth did not prove the 

weight of the drugs recovered, and; (2) the Department of Corrections 

inaccurately computed his sentences consecutively, rather than 

concurrently. Appellant also claimed counsel was ineffective for failing to 

hire a narcotics expert to examine the drugs at issue for weight or quantity. 
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untimely, because Appellant failed to plead and prove an exception to the 

PCRA’s jurisdiction time-bar. This timely appeal resulted.2

On appeal, Appellant presents the following pro se issues for our 

review:

1. Did the lower court err in finding [Appellant] did not 

assert [an] exception to timeliness per 18 Pa.C.S.A. § 

9545(b)(1)?

2. Did the lower court err in fail[ing] to appoint counsel, 

depriving [Appellant] of a full, fair, and counseled 

opportunity to present claims, and/or hold an evidentiary 

hearing?

3. Was appellate counsel ineffective for failing to amend 

and raise for review the unconstitutionality of [a] 

mandatory minimum sentence imposed per [the United 

States] Supreme Court’s decision in Alleyne v. U.S., 

133 S.Ct. 2151 (2013)?

4. Was the verdict against the weight of the evidence for 

conspiracy?

Appellant’s Brief at 1-2.

Our standard of review is well-settled:

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2

 Appellant filed a pro se notice of appeal on March 12, 2015. On April 23, 

2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a). On 

May 4, 2015, Appellant filed a pro se motion, with this Court, to supplement 

his PCRA petition filed on March 12, 2014, by asserting an exception to the 

PCRA’s one-year jurisdictional time bar based upon a newly recognized 

constitutional right articulated by the United States Supreme Court in

Alleyne v. United States, -- U.S. --, 133 S. Ct. 2151 (2013). By per 

curiam order filed on June 1, 2015, this Court denied the motion without 

prejudice for Appellant to raise the issue in his appellate brief. Appellant 

presents the issue again for our review. 
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In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record of 

the PCRA court's hearing, viewed in the light most favorable 

to the prevailing party. Because most PCRA appeals involve 

questions of fact and law, we employ a mixed standard of 

review. We defer to the PCRA court's factual findings and 

credibility determinations supported by the record. In 

contrast, we review the PCRA court's legal conclusions de 

novo. 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted).

Initially, we reject Appellant’s second argument that he is entitled to 

the appointment of counsel. “[F]irst time PCRA petitioners have a rulebased right to counsel.” Commonwealth v. Figueroa, 29 A.3d 1177, 

1180-1181 n.6 (Pa. Super. 2011), citing Pa.R.Crim.P. 904. Because this is 

Appellant’s second PCRA petition, he is not entitled to court-appointed 

representation.

Appellant’s first and third issues are inter-related, so we will examine 

them together. Appellant contends that he received an illegal mandatory 

minimum sentence under 18 Pa.C.S.A. § 7508 based upon Alleyne. 

Appellant’s Brief at 4. He claims that, “[u]nder Pennsylvania law, a 

challenge to the validity of the sentence is a challenge to its legality” and an 

illegal sentence claim “can never be waived.” Id. Appellant avers the PCRA 

court erred in dismissing his PCRA petition as untimely, because Alleyne

created a new constitutional right, which is an exception to the PCRA’s oneyear timing requirement under 42 Pa.C.S.A. § 9545(b). He claims he 
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presented his claim within 60 days of the subsequent decisions issued by 

Pennsylvania courts regarding application of Alleyne. Id.

This Court previously stated:

[I]t is black-letter law that challenges to the legality of a 

judgment of sentence cannot be waived. [...] While the rule 

forecloses permanent waiver of legality-of-sentence claims, 

it does not preclude a court from enforcing procedural rules 

or jurisdictional limits and requiring such claims be properly 

presented at the time they are raised in order to obtain 

review thereof. [...W]hen a petitioner files an untimely PCRA 

petition raising a legality-of-sentence claim, the claim is not 

waived, but the jurisdictional limits of the PCRA itself render 

the claim incapable of review.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (internal 

citations omitted).

We previously determined: 

Pennsylvania law makes clear that when a PCRA petition is 

untimely, neither this Court nor the trial court has 

jurisdiction over the petition. The period for filing a PCRA 

petition is not subject to the doctrine of equitable tolling; 

instead, the time for filing a PCRA petition can be extended 

only if the PCRA permits it to be extended. This is to accord 

finality to the collateral review process. However, an 

untimely petition may be reviewed when the petition 

alleges, and the petitioner proves, that any of the three 

limited exceptions to the time for filing the petition, set 

forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014) 

(internal citations, quotations, and brackets omitted).

The PCRA provides, in relevant part, as follows:

§ 9545. Jurisdiction and proceedings

* * *
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(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.

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented.

42 Pa.C.S.A. § 9545(b).

Appellant’s judgment of sentence became final on February 8, 1994, or 

90 days after our Supreme Court denied discretionary review on direct 

appeal. See Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa. Super. 

2009) (“Judgment becomes 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 time for seeking the 

review.”); see also U.S.Sup.Ct.R. 13 (“A petition for a writ of certiorari 
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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.”). As such, Appellant’s PCRA petitions filed in 2015, over 20 years 

after his judgment of sentence became final, are patently untimely.

Alleyne was decided on June 17, 2013 and Appellant filed his original 

PCRA petition on March 12, 2014, 272 days after Alleyne was decided.3

Therefore, Appellant has not complied with Section 9545(b)(2).

Moreover, we held in Miller:

[N]either 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 Appellant'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. Therefore, 

Appellant has failed to satisfy the new constitutional right 

exception to the time-bar.

Miller, 102 A.3d at 995. The same holds true here. 

Finally, Appellant claims, in his fourth issue above, his conviction for 

conspiracy was against the weight of the evidence presented at trial. 

____________________________________________

3

 We also note that Appellant did not raise the Alleyne issue in his original 

PCRA petition. Instead, he raised the issue for the first time on May 4, 

2015, when he filed a motion with this Court to supplement his original PCRA 

petition, or 690 days after Alleyne was decided. 
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Appellant’s Brief at 4. As stated above, the PCRA court lacked jurisdiction to 

entertain the PCRA petitions presented by Appellant. Moreover, the PCRA

procedurally bars claims of trial court error, by requiring a 

petitioner to show the allegation of error is not previously 

litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At 

the PCRA stage, claims of trial court error are either 

previously litigated (if raised on direct appeal) or waived (if 

not). See Commonwealth v. Spotz, 18 A.3d 244, 260–

261, 270 (Pa. 2011) (rejecting claims of trial court error as 

either previously litigated where raised on direct appeal or 

waived where not raised direct appeal).

Reyes-Rodriguez, 111 A.3d at 780. Hence, Appellant was required to raise 

this issue on direct appeal.

Based upon all of the foregoing, Appellant is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2016