J-S21044-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEITH SILFIES,

Appellant No. 2208 EDA 2015

Appeal from the PCRA Order June 24, 2015

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0004272-2004

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 18, 2016

This is a pro se appeal from the order notifying Appellant that his 

“Motion to Correct/Modification of An Illegal Sentence Pursuant to Pa.C.S.A. 

[§] 9760,” which was properly treated as an untimely serial petition 

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

9546, would be dismissed without a hearing. We affirm.1

During the history of this case, Appellant has filed a plethora of pro se 

motions. Previously, this Court has summarized the pertinent facts and a 

partial procedural history as follows:

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1

 Although this order is interlocutory, it subsequently was rendered final 

when the PCRA court dismissed Appellant’s motion on August 4, 2015. See 

Pa.R.Crim.P. 905(a)(5) (providing that an appeal may be regarded as 

prematurely filed, but then perfected once a final order is subsequently 

entered).

 
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On April 27, 2005, Appellant pled guilty to several 

burglary and theft-related offenses [at multiple docket 

numbers]. He was sentenced on June 8, 2005, to [an 

aggregate term of] 2 1⁄2 to 6 years of incarceration, 

followed by 10 years on state-supervised special 

probation. The consecutive probationary sentence was 

only imposed [at Case No. 4272 of 2004].

Appellant served his time in prison and completed 

parole [as to all his other dockets], at which time the ten 

year probationary sentence from the within matter, Case 

No. 4272 of 2004, began to run. 

Appellant committed technical violations of his 

probation on or around September 2, 2011 and/or 

September 3, 2011. A Gagnon II hearing was held on 

October 18, 2011, at which time Appellant’s probation was 

revoked and he was sentenced to 10 years of special 

probation.

On or around December 12, 2011, Appellant was 

arrested and charged with Driving Under the Influence 

(DUI), which constituted a violation of his special 

probation. He was convicted of the DUI offense on 

February 15, 2012. On February 28, 2012, a Gagnon II 

hearing was held during which [Appellant] conceded the 

allegations in the petition against him. As a result of the 

violation, a five-to-ten year sentence was recommended. 

The Court postponed sentencing until April 3, 2012, in 

order to look into Appellant’s eligibility for a County 

Intermediate Punishment drug offender program for 

purposes of obtaining treatment as requested by defense 

counsel. 

On April 3, 2012, Appellant was resentenced to ten 

years of probation with the first 22 months to be served in 

the Lehigh County Treatment Continuum Alternative 

Program (TCAP) based on representations by defense 

counsel that he was eligible for the TCAP program.

Appellant absconded from the TCAP program’s 

treatment house on June 6, 2012, at which time a warrant 

was issued for his arrest. He was subsequently arrested 

and a Gagnon II hearing was held on July 17, 2012. 

During that hearing, Appellant brought to the Court’s 

attention that due to the nature of the underlying offenses, 
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he is ineligible for TCAP, which rendered the April 3, 2012, 

sentence illegal. As a result of that, at the end of the 

hearing, the Court vacated the April 3, 2012, sentence and 

resentenced Appellant to five to ten years in a State 

Correctional Institution. This resentencing was not based 

on any violation incurred as a result of [Appellant] 

absconding from TCAP. As a procedural matter, the Court 

treated the TCAP sentence as a legal nullity. The five to 

ten year sentence was a resentencing based on the 

sustained violations arising from the DUI conviction. Thus, 

it was procedurally imposed following Appellant’s 

concession to the violation on February 28, 2012.

Appellant filed a Petition for Reconsideration on July 25, 

2012, which this Court denied by Order dated July 27, 

2012. Appellant subsequently filed several pro se motions, 

all of which were denied.

On August 9, 2012, Appellant filed a Notice of Appeal, 

but filed it under an incorrect case number. The Court 

ordered him to file a Statement of Matters Complained of 

on Appeal (1925(b) Statement) within twenty-one days. 

On September 11, 2012, Appellant filed a second Notice of 

Appeal, this one captioned under the correct case number. 

The Court granted an extension of time to file the Concise 

Statement. Appellant filed his 1925(b) Statement on 

October 8, 2012[.] The Court filed a 1925(a) Opinion on 

November 13, 2012.

On November [3]0, 2012, the Superior Court entered 

an Order quashing Appellant’s appeal as untimely because 

the Notice of Appeal was filed more than thirty days after 

the date he received his sentence.

On December 27, 2012, Appellant filed a pro se PCRA 

petition. Because at the time this Court had not yet 

received the official notification that the appeal was 

quashed, this Court stayed the PCRA.

On February 4, 2013, after having received notice of 

the outcome of the appeal, this Court lifted the stay on the 

PCRA proceedings and appointed [PCRA counsel] to 

represent Appellant for his PCRA.

Appellant continued his pro se letter and motion-writing 

campaign while the PCRA matter was stayed pending the 
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outcome of the initial appeal. On January 29, 2013, 

Appellant filed a “Motion to Enter Self as Pro-Se and 

Remove Counsel of Record on Actions,” which was filed 

prior to the formal appointment of [PCRA counsel]. As a 

consequence of all of Appellant’s filings, this Court decided, 

in an exercise of fairness to Appellant, to grant him a 

hearing at which time he could be advised of his right to 

waive court-appointed counsel and the ramifications 

thereof, [see Commonwealth v. Grazier, 713 A.2d 81 (Pa. 

1998),] along with giving him the opportunity to be heard 

in open court.

Appellant also filed a pro se “Motion for Extrordinary 

(sic) Relief under Rule (704)” on February 8, 2013. It 

appeared this is a reference to Pa.R.Crim.P. 704(B), which 

addresses oral motions for extraordinary relief raised at 

the time of sentencing.

On February 26, 2013, the Court conducted a hearing 

for Appellant. At the hearing, Appellant chose to waive his 

court-appointed counsel and proceed pro se. He also 

withdrew his pro se PCRA petition. At the end of the 

hearing, the Motion for Extraordinary Relief was denied 

because it was inappropriate for the procedural posture of 

the case. The PCRA petition was also dismissed due to 

Appellant withdrawing it. Appellant finally requested to 

withdraw a pro se Motion to Withdraw Counsel/Habeas 

Corpus Hearing. This Court found that Appellant’s request 

was a knowing, intelligent, and voluntary decision and 

granted his request to withdraw the Motion.

Appellant filed a pro se Notice of Appeal on March [7], 

2013.

Commonwealth v. Silfies, 97 A.3d 796 (Pa. Super. 2014), unpublished 

memorandum at 1-4 (citations omitted).

In affirming the denial of Appellant’s motion for extraordinary relief, 

we first noted that, because the PCRA subsumes other post-conviction 

remedies including habeas corpus, the motion should have been treated as a 

timely PCRA petition. Silfies, at 5 (citing Commonwealth v. Peterkin, 
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722 A.2d 638, 639 n.1 (Pa. 1998)). Utilizing our standard of review under 

the PCRA, we adopted the rationale expounded by the court below in 

rejecting Appellant’s claims that his July 17, 2012 sentence was illegal. See 

id. at 6-8. 

Undaunted by this Court’s decision, Appellant continued to seek relief 

by filing numerous petitions.2 On June 5, 2015, Appellant filed a pro se

“Motion to Correct/Modification of An Illegal Sentence Pursuant to 42 

Pa.C.S.A. [§]9760” and a pro se “Motion for Appointment of Counsel and In 

Forma Pauperis.” Treating the dual filings as a serial PCRA petition, the 

PCRA court filed Pa.R.Crim.P. 907 notice of intent to dismiss the filing 

without a hearing. Appellant filed the instant appeal prematurely. See n.1, 

infra. On August 4, 2015, the PCRA court denied Appellant’s pro se Motion 

to Correct/Modification of an Illegal Sentence Pursuant to 42 Pa.C.S.A. [§] 

9760. See n.1, supra. Although the PCRA court did not require Pa.R.A.P. 

1925 compliance, it did file a Rule 1925(a) opinion.

In this appeal, Appellant again presents several challenges to the 

legality of his July 17, 2012 sentence. Before addressing Appellant’s claims, 

we must first determine whether they PCRA court correctly concluded that 

Appellant’s pro se motion for writ of habeas corpus, which it treated as a 

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2 Additionally, Appellant continues to seek post-conviction relief in the 

federal courts.
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serial PCRA petition, was untimely filed. This Court’s standard of review 

regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 

(Pa. 2005). The PCRA court’s findings will not be disturbed unless there is 

no support for the findings in the certified record. Commonwealth v. Carr, 

768 A.2d 1164, 1166 (Pa. Super. 2001). 

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a 

petition for relief under the PCRA, including a second or subsequent petition, 

must be filed within one year of the date the judgment is final unless the 

petition alleges, and the petitioner proves, that an exception to the time for 

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and 

(iii), is met. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 

(Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these 

statutory exceptions must “be filed within 60 days of the date the claims 

could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).

Appellant’s judgment of sentence became final on August 16, 2012, 

when the thirty-day time period for filing a direct appeal to this Court 

expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to 

file the PCRA petition at issue August 16, 2013, in order for it to be timely. 
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As Appellant filed the instant petition on June 5, 2015, it is untimely unless 

he has satisfied his burden of pleading and proving that one of the 

enumerated exceptions applies. See Commonwealth v. Beasley, 741 

A.2d 1258, 1261 (Pa. 1999).

Within his brief, Appellant has neither acknowledged the PCRA’s time 

bar nor attempted to prove any exception thereto. Instead, he asserts that 

his issues raised on appeal are reviewable, because “illegal sentences are 

non-waivable. Appellant’s Brief at 3 (citations omitted). Unfortunately for 

Appellant, although illegal sentencing issues cannot be waived, they still 

must be presented in a timely PCRA petition. Commonwealth v. Taylor, 

65 A.3d 426 (Pa. Super. 2013). Thus, the PCRA court correctly concluded 

that it lacked jurisdiction to consider Appellant’s serial PCRA petition. We 

therefore affirm the PCRA court’s order denying Appellant post-conviction 

relief.3

Order affirmed.

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3

In doing so, we agree with the PCRA court’s conclusion that, even if his 

latest PCRA petition was timely, Appellant’s challenge to the legality of his 

sentence “was fully and properly litigated” in a previous appeal. PCRA Court 

Opinion, 8/4/15, at 1. See Silfies, supra.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2016