J-S06019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC ELROD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 580 EDA 2023

Appeal from the PCRA Order Entered February 2, 2023

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

No(s): CP-51-CR-0011460-2011

BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 12, 2024

Eric Elrod appeals from the order dismissing his Post Conviction Relief 

Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. § 9541-46. We affirm.

In March 2015, Elrod pled guilty to robbery, possession of a firearm with 

altered manufacturer’s number, firearms not to be carried without a license, 

and criminal conspiracy.1 Pursuant to the plea agreement, the trial court 

sentenced Elrod to 111⁄2 to 23 months’ incarceration and ten years’ probation. 

In May 2016, the trial court revoked Elrod’s probation. The trial court 

sentenced Elrod to five to ten years’ incarceration and ten years’ probation.

In April 2018, this Court affirmed the judgment of sentence. 

Elrod filed several prior PCRA petitions, all of which were unsuccessful. 

In September 2022, he filed the instant pro se PCRA petition. Elrod argued 

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1 18 Pa.C.S.A. §§ 3701(a)(1), 6110.2(a), 6105(a)(1), and 903, respectively.
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that his petition was timely based on the newly-discovered fact exception to 

the PCRA time bar. He points out that this Court in Commonwealth v. 

Simmons, 262 A.3d 512, 523 (Pa.Super. 2021) (en banc), and 

Commonwealth v. Farmer, No. 667 MDA 2020, 2021 WL 4279762, at *3

(Pa.Super. filed Sept. 21, 2021) (unpublished memorandum), held that a 

court cannot anticipatorily revoke probation. He claims the cases are newly 

discovered facts that he learned of in July 2022.

In January 2023, the court issued notice of its intent to dismiss the 

petition without a hearing (“Rule 907 notice”). It reasoned the petition was 

untimely and Elrod had not satisfied any of the time bar exceptions. Elrod filed 

a document entitled an amended petition, that the court treated as a response 

to the Rule 907 notice. In February 2023, the court dismissed the petition as 

untimely. Elrod filed a timely notice of appeal.2

Elrod raises the following issues:

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2 Elrod filed this PCRA petition on September 23, 2022, immediately after this 

Court ruled on an appeal of a prior PCRA petition on September 19, 2022. 

Therefore, the appeal of the prior PCRA petition remained pending because 

his time for filing a petition for allowance of appeal to the Pennsylvania 

Supreme Court had not expired. However, the PCRA court did not address the 

petition until after the time to file a petition for allowance of appeal had expired

and the case had been remanded to the PCRA court. See Certificate of 

Remittal/Remand of Record, dated Nov. 15, 2022. The court therefore had 

jurisdiction to address the petition. Commonwealth v. Montgomery, 181 

A.3d 359, 364 (Pa.Super. 2018) (en banc) (a court cannot “consider[] . . . a 

subsequent petition from the time a PCRA order is appealed until no further 

review of that order is possible”).
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1. Was this appellant’s PCRA considered timely under an

exception to the time-bar rules?

2. Was this appellant illegally resentenced to 5 to 10 years,

followed by 10 years probtion during a VOP hearing on 

7/22/16 due to a revocation of probation which had not yet 

commenced? And was said probation violator still on county 

parole at the time of this probation violation? Is this claim 

qualified for retroactivity?

3.Whent the [ trial] court revoked appellant's parole for a

violation [resulting from a new conviction] did not the court 

lack authority under Pennsylvania law to also revoke a 

consecutive sentence of probation [Appellant] had not yet 

begun to serve?

4. Did the trial court change the original order of probation 

from “consecutive” to “concurrent,” thus illegally modifying 

appellant’s sentence?

5. Did appellant need to preserve his claim since it 

concerned the legality of his sentence?

6. Is the following true? When a new constitutional rule 

rendering a sentence unlawful is decided during the 

pendency of a persons direct appeal, applying the new ruling 

during PCRA is not an improper retroactive pronouncement 

because said rules apply on direct appeal and a person 

sentenced illegally based on the constitutional rule should 

have been afforded relief based on direct appeal even if the 

issue was not raised.

7. Was appellant illegally sentenced initially as he received

“Immediate Parole” on 3/30/15? Is this claim qualified for

retroactivity?

8. Did the trial court violate the terms of the plea agreement 

by not sentencing appellant directly in accordance with the 

plea agreement? Does this claim apply retroactively?

9. Did the lower court appoint counsel that failed to put in

appellant’s direct appeal as appellant’s direct appeal rights 

were restored Nunc Pro Tunc on 3/17/17? Does this apply 

retroactively & will appellant receive those appellate rights 

back Nunc Pro Tunc? 

10. Was appellant abandoned by all counsel in this matter?
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11. Did the lower court (Jurist) illegally remove appellant’s

private/paid counsel (Damian M. Sammons) of appellant’s

chosing and replace him with a Public Defender (Mark 

Cichowicz), thus violating appellant's constitutional right to 

“Counsel of Choice”?

12. Did the District Attorney’s Office use an untrue 

statement in it’s rendition of the facts during appellant’s 

guilty plea sentencing hearing (3/30/15)?

13. Was exculpatory video evidence withheld from being 

viewed by this appellant & does that very evidence prove 

appellant's innocence, along with ADA’s perjured testimony?

14. Do Brady Violations exist within this case?

15.Did appellant receive affidavits from both co-defendant

(Taliesin Green) & a Raymind Wright (Alibi Witness) that 

prove appellant’s innocence in these matters?

Elrod’s Br. at 7-8 (verbatim).

We review the denial of PCRA relief by determining whether the PCRA 

court’s conclusions are “supported by the evidence of record and [are] free of 

legal error.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) 

(citations omitted). 

A petitioner has one year after the judgment of sentence becomes final 

to seek relief that is cognizable under the PCRA. See 42 Pa.C.S.A. § 

9545(b)(1). A judgment of sentence 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.” Id. at § 9545(b)(3). If a petition seeks PCRA relief 

beyond that deadline, the petitioner must plead and prove at least one of the 

PCRA’s time-bar exceptions. These exceptions include:
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(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.

Id. at § 9545(b)(1)(i)-(iii).

Elrod argues that he satisfies the newly discovered fact exception to the 

PCRA time bar. He claims that his discovery of case law—Farmer and 

Simmons—satisfies the newly discovered fact exception to the PCRA time 

bar. However, judicial decisions and case law do not constitute newly 

discovered facts for purposes of the PCRA’s time-bar. See Commonwealth 

v. Reid, 235 A.3d 1124, 1148 (Pa. 2020). This claim therefore fails.

Further, to the extend Elrod’s argument can be read as an attempt to 

establish the newly recognized constitutional right exception to the time bar, 

the claim fails. In Simmons, 262 A.3d at 523, we held that revocation of 

probation before he started serving his probationary sentence was 

inconsistent with the Sentencing Code. In Commonwealth v. Rosario, 294 

A.3d 338, 341 (Pa. 2023), decided after Elrod’s appellate brief was filed, the 

Pennsylvania Supreme Court agreed with our holding in Simmons and found 

that courts cannot anticipatorily revoke probation. However, neither 
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Simmons nor Rosario held the prohibition on anticipatory revocation would 

apply retroactively to sentences imposed before they were decided. See 

Commonwealth v. Diaz, --- A.3d ----, 2024 WL 1291936, at *2 (Pa.Super. 

filed Mar. 27, 2024). Further, this Court has declined to give Simmons and 

Rosario retroactive effect. Id. The claim therefore fails.

Elrod failed to establish an exception to the PCRA time bar. His PCRA 

petition therefore is untimely and the court did not err in dismissing it.

Order affirmed.

Date: 6/12/2024