Com. v. Walters, R. (concurring)
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J-S41028-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. RICHARD WALTERS Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2844 EDA 2017 Appeal from the PCRA Order August 28, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001282-2012 BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E. CONCURRING STATEMENT BY STEVENS, P.J.E.: FILED SEPTEMBER 06, 2018 While I am constrained to agree with the Majority’s decision to reverse the PCRA court’s Order and remand for resentencing, I write separately to emphasize that in Commonwealth v. DiMatteo, 177 A.3d 182, 183 (Pa. 2018), the Pennsylvania Supreme Court granted review “to assess what relief, if any, a criminal defendant is entitled to when he raises an illegal sentencing challenge premised on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) in a timely petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546, when, at the time Alleyne was decided, the defendant's judgment of sentence was not yet final.” Citing Commonwealth v. Newman, 99 A.3d. 86, 90 (Pa. 2014) the Court stressed that “Alleyne applied only to cases pending on direct review as of June 17, 2013, the date of the Alleyne decision.” DiMatteo, 177 A.3d at 187–88 ____________________________________ * Former Justice specially assigned to the Superior Court. J-S41028-18 (italics added, boldface type in original). The Court ultimately held that its prior decision in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) did not bar a petitioner “serving an illegal sentence from relief when such relief is sought in a timely PCRA petition and the judgment of sentence was not final when Alleyne was announced.” Id. at 191. The phrase “as of” is “used to indicate a time or date at which something begins of ends.” As of Definition, Merriam Webster.com, http.//dictionary/browse/as is (last visited Aug. 22, 2018). Although Appellant did not file a direct appeal, as the Majority explains, he had until June 17, 2013, to do so. As such, his case was pending on direct review until the end of business on June 17, 2013; therefore, because his judgment of sentence was not yet final when Alleyne was decided and the instant, first PCRA petition was timely-filed, Alleyne is applicable to Appellant’s case retroactively. See Commonwealth v. Ruiz, 131 A.3d 54, 60-61 (Pa.Super. 2015). -2-
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