J-S01037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                  Appellee             :
                                       :
            v.                         :
                                       :
STEVEN D. GEBHART                      :
                                       :
                  Appellant            :        No. 1099 MDA 2017

            Appeal from the PCRA Order Entered May 30, 2017
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0005854-2008,
                          CP-67-CR-0007763-2009

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:              FILED FEBRUARY 06, 2018

     Appellant, Steven D. Gebhart, appeals pro se from the order entered

in the York County Court of Common Pleas, which denied his serial petition

for collateral relief (labeled as motions for various relief) per the Post

Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.     At Docket

No. 5854-2008, a jury convicted Appellant on November 17, 2010, of theft

by deception, corrupt organizations, and deceptive business practices.   On

February 4, 2011, the court sentenced Appellant to an aggregate term of 4.3

to 8.6 years’ incarceration. This Court affirmed the judgment of sentence on

September 22, 2014, and our Supreme Court denied allowance of appeal on

April 1, 2015. See Commonwealth v. Gebhart, 107 A.3d 232 (Pa.Super.

2014) (unpublished memorandum), appeal denied, 631 Pa. 735, 113 A.3d

278 (2015). Appellant sought no further direct review. So, the judgment of
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sentence at Docket No. 5854-2008 became final on June 30, 2015.

      At Docket No. 7763-2009, a jury convicted Appellant on November 3,

2011, of insurance fraud.       On December 21, 2011, the court sentenced

Appellant to an aggregate term of 9 months to 5 years’ incarceration, plus

restitution, consecutive to the sentence at Docket No. 5854-2008.        This

Court affirmed on February 15, 2013. See Commonwealth v. Gebhart, 68

A.3d 364 (Pa.Super. 2013) (unpublished memorandum).         Appellant sought

no further direct review. So, the judgment of sentence at Docket No. 7763-

2009 became final on March 17, 2013.        In 2014, Appellant filed his first

PCRA petition at Docket No. 7763-2009, which was ultimately unsuccessful.

In 2016, Appellant filed at both docket numbers a PCRA petition—his first at

Docket No. 5854-2008 and his second at Docket No. 7763-2009—which was

also ultimately unsuccessful.

      On May 10, 2017, Appellant filed at both docket numbers several pro

se motions, including: “Motion for Writ of Habeas Corpus 28 U.S.C. § 2254

Newly Discovered Evidence;” “Motion for Original Jurisdiction;” and “Motion

for Quash.” The PCRA court deemed the motions collectively as his second

PCRA petition at Docket No. 5854-2008 and his third PCRA petition at

Docket No. 7763-2009. The PCRA court denied Appellant relief in an order

dated May 30, 2017, and mailed to Appellant on May 31, 2017. On June 30,

2017, Appellant timely filed a pro se notice of appeal, per the prisoner

mailbox rule. See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super.


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2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner

mailbox rule provides that document is considered filed on date pro se

prisoner delivers it to prison authorities for mailing).           The PCRA court

ordered Appellant, on July 7, 2017, to file a Rule 1925(b) statement;

Appellant timely complied on August 1, 2017, and filed an amended

statement on August 3, 2017.

      Preliminarily,    a   petition   for   post-conviction   collateral   relief   will

generally be considered a PCRA petition, even if captioned as a request for

habeas corpus relief, if the petition raises issues cognizable under the PCRA.

See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for

same purpose).         The timeliness of a PCRA petition is a jurisdictional

requisite.   Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013),

appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1).       A judgment is deemed final at the conclusion of

direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §

9545(b)(3).   The exceptions to the PCRA time-bar allow for very limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting an exception must file a petition within 60 days of the

date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).


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       Instantly, Appellant appears to assert, inter alia, the trial courts lacked

jurisdiction and he recently discovered new evidence related to his

convictions.    Appellant’s claims are cognizable under the PCRA.        See 42

Pa.C.S.A. § 9543(a)(2)(vi), (viii). So, the court properly treated Appellant’s

pro se motions collectively as a PCRA petition.         See Peterkin, supra.

Nevertheless, at Docket No. 7763-2009, Appellant’s judgment of sentence

became final on March 17, 2013, upon expiration of the time to file a petition

for allowance of appeal in our Supreme Court. See Pa.R.A.P. 1113(a). At

Docket No. 5854-2008, Appellant’s judgment of sentence became final on

June 30, 2015, upon expiration of the time to file a petition for a writ of

certiorari in the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed

the current, pro se serial petition for collateral relief on May 10, 2017, which

is patently untimely.       See 42 Pa.C.S.A. § 9545(b)(1).     Though Appellant

appears to claim he has newly-discovered evidence, he failed to plead and

prove any of the exceptions to the PCRA time-bar.           See id.    Therefore,

Appellant’s petition remains time-barred, and the PCRA court lacked

jurisdiction to review it. See Turner, supra. Accordingly, we affirm.1

       Order affirmed.



____________________________________________


1 Due to our disposition, we deny as moot Appellant’s open “Motion for
Temporary Restraining Order,” “Motion for Writ of Habeas Corpus,” and
“Motion for Expedition.”



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2018




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