J-S46040-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

PHILLIP DIMATTEO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2820 EDA 2015

Appeal from the PCRA Order August 24, 2015

in the Court of Common Pleas of Chester County,

Civil Division, at No(s): CP-15-CR-0004033-2011

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 25, 2016

Phillip DiMatteo (Appellant) appeals from the order entered on August 

24, 2015, which denied his petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse the order of the 

PCRA court, vacate Appellant’s judgment of sentence, and remand for 

resentencing.

“[Appellant] was charged with 111 counts of possession with intent to 

deliver [(PWID)], criminal conspiracy, 64 counts of dealing in proceeds of 

unlawful activities, corrupt organizations, 111 counts of criminal use of a 

communications facility and 111 counts of possession of a controlled 

substance.” PCRA Court Opinion, 8/25/2015, at 2 n.1. These charges arose 

after a lengthy investigation into Appellant and 14 others who were involved 

in a large drug-trafficking operation.
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On November 20, 2012, Appellant entered into an open guilty plea 

whereby he pled guilty to 55 counts of PWID, and one count each of 

conspiracy and corrupt organizations. On February 6, 2013, Appellant was 

sentenced to an aggregate term of 15 to 30 years of incarceration. Relevant 

to this appeal, that sentence included a number of mandatory minimum 

sentences imposed pursuant to 18 Pa.C.S. § 7508.

Appellant timely filed a motion for reconsideration of sentence. That 

motion was denied on June 12, 2013. Appellant did not file a notice of 

appeal to this Court.

On January 10, 2014, Appellant pro se filed a motion for modification 

of sentence nunc pro tunc, which was denied by the trial court on February 

24, 2014.1 On May 22, 2014, Appellant filed pro se a PCRA petition. 

Counsel was appointed and subsequently moved to withdraw his appearance 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The 

 

1

In that motion, Appellant set forth a number of purported errors. The 

Commonwealth responded arguing that this post-sentence motion was filed 

352 days late. The trial court agreed, and dismissed the petition on this 

basis. We observe that generally speaking, “[i]t is well-settled that the 

PCRA is intended to be the sole means of achieving post-conviction relief.” 

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). 

Moreover, “an untimely post-sentence motion filed after finality of judgment 

is to be treated as a PCRA petition.” Id. at 467. Accordingly, the trial court 

should have treated Appellant’s pro se motion as a PCRA petition and 

appointed counsel at that juncture. Nevertheless, because Appellant 

subsequently filed a timely PCRA petition, and counsel was appointed, there 

was no prejudice to Appellant on the basis of this error. 
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PCRA court reviewed the record and concluded there may be a genuine issue 

of material fact “regarding [Appellant’s] allegation of trial counsel not filing a 

direct appeal after [Appellant] specifically requested him to do so.” Order, 

5/9/2015. Thus, the trial court scheduled a hearing. After the hearing, the 

PCRA court dismissed Appellant’s PCRA petition and permitted counsel to 

withdraw. Appellant pro se timely filed a notice of appeal to this Court.2

On appeal, Appellant sets forth two issues for our review. We first 

consider Appellant’s contention that his sentence is illegal. Appellant’s Brief 

at 9-10. Our standard of review of the denial of a PCRA petition is limited to 

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010). Appellant contends that he is serving an 

illegal sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151 

(2013). Appellant’s Brief at 10. In Alleyne, “the United States Supreme 

Court [] held that any facts leading to an increase in a mandatory minimum 

sentence are elements of the crime and must be presented to a jury and 

proven beyond a reasonable doubt.” Commonwealth v. Valentine, 101 

A.3d 801, 809 (Pa. Super. 2014). This Court has determined that the 

holding in Alleyne renders unconstitutional the statutes pursuant to which 

Appellant was sentenced. See Commonwealth v. Pennybaker, 121 A.3d 

 

2 The PCRA court did not order Appellant to file a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925.
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530, 533-34 n.8 (Pa. Super. 2015) (recognizing that Alleyne has rendered 

unconstitutional several Pennsylvania sentencing statutes, including 18 

Pa.C.S. § 7508). 

In Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), this 

Court held that where a petitioner currently serving a mandatory minimum 

sentence has filed a timely PCRA petition and his judgment of sentence was 

not final at the time Alleyne was decided, his sentence is illegal and he is 

entitled to a new sentence.3 Instantly, Appellant was sentenced on February 

5, 2013, and filed timely a post-sentence motion. That motion was denied 

on June 12, 2013, and Alleyne was decided five days later, on June 17, 

2013. Appellant had until July 13, 2013 to file a direct appeal. Even though 

Appellant did not file a direct appeal, his judgment of sentence became final 

after Alleyne was decided and prior to the expiration of the time to file a 

direct appeal. See also 42 Pa.C.S. § 9545(b)(3) (“For purposes of [the 

PCRA], a 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 

 

3

In Ruiz, the petitioner was sentenced on June 5, 2013, and Alleyne was 

decided 12 days later, on June 17, 2013. The petitioner filed timely a PCRA 

petition asserting that his sentence was illegal pursuant to Alleyne, and the 

PCRA court dismissed the petition. This Court reversed concluding that 

“Ruiz’s June 5, 2015 judgment of sentence was not final when Alleyne was 

decided because ... the 30-day period within which the trial court’s order 

may be appealed, modified or rescinded, had not yet expired on June 17, 

2013 - the date of the Alleyne decision.” Ruiz, 131 A.3d at 59. 
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the review.”). Accordingly, pursuant to Ruiz, Appellant is serving an illegal 

sentence because application of Alleyne renders such sentence illegal. 

Thus, we reverse the order of the PCRA court, vacate Appellant’s judgment 

of sentence, and remand for resentencing.4

Order reversed. Judgment of sentence vacated. Case remanded. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2016

 

4 Because we have concluded that Appellant’s judgment of sentence must be 

vacated, Appellant’s other issue raising trial counsel’s ineffective assistance 

for failing to file a direct appeal from that judgment of sentence is moot.