J-S77025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HARVEY TABRON

                            Appellant                 No. 654 EDA 2014


                 Appeal from the PCRA Order February 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0414231-1976


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 22, 2014

        Appellant, Harvey Tabron, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed his petition

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1     We

affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           On November 9, 1976, following a jury trial, [Appellant]
           was found guilty of second degree murder[2] and two

____________________________________________


*Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502.
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           counts of robbery[3] before the Honorable Judge Albert F.
           Sabo.1 On January 7, 1977, [Appellant] was sentenced to
           serve a mandatory term of life imprisonment on the
           murder conviction, and concurrent terms of ten to twenty
           years’ imprisonment for the robbery convictions by Judge
           Sabo.    [Appellant] did not file an appeal from the
           judgment of sentence.
              1
               The instant matter was administratively assigned to
              this [c]ourt for a decision following its appointment
              to the position of Supervising Judge of the Criminal
              Division of the Court of Common Pleas of
              Philadelphia County.

           [Appellant] filed his first petition seeking post conviction
           collateral relief on October 3, 1977, following which
           counsel was appointed to represent him.2          After two
           hearings before the Honorable Edward J. Blake,
           [Appellant’s] PCHA petition was denied on October 29,
           1980.     The [Superior] Court affirmed the denial on
           September 22, 1983.
              2
                It is noted that [Appellant] filed his first petition for
              relief pursuant to the Post Conviction Hearing Act
              (PCHA), 42 Pa.C.S.A. 9541 et seq. (repealed and
              replaced by the PCRA for petitions filed on or after
              April 13, 1988). Because the instant petition is not
              [Appellant’s] first, the one-year grace period
              provided in the 1996 amendments to the PCRA “does
              not apply to second or subsequent petitions,
              regardless of when the first petition was filed.”
              Commonwealth v. Fairiror, 809 A.2d 396, 398
              (Pa.Super.2002), appeal denied, 827 A.2d 429
              ([Pa.]2003).

           [Appellant] filed his second petition seeking post-
           conviction collateral relief on January 14, 1997. The trial
           court denied his petition without a hearing on July 14,
           1997. The Superior Court affirmed the court’s order on
           December 28, 1998. No further appeal was taken.
____________________________________________


3
    18 Pa.C.S. § 3701.



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Trial Court Pa.R.A.P. 1925(a) Opinion, filed June 3, 2014, at 1-2.

      On June 15, 2012, Appellant filed the instant petition, which he styled

as a petition for a writ of habeas corpus. The court issued Pa.R.Crim.P. 907

notice of its intention to dismiss the petition as an untimely PCRA petition on

August 7, 2012.     After Appellant responded to the notice on August 27,

2012, the court dismissed the petition on February 10, 2014. On February

24, 2014, Appellant timely filed a notice of appeal. The court did not order,

nor did Appellant file, a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

           DID THE TRIAL COURT ERR [BY IMPOSING A LIFE]
           SENTENCE ON JANUARY 07, 1977[?]

           DID THE TRIAL COURT ERR IN FAILING TO FIND THE
           TRIAL COUNSEL INEFFECTIVE FOR FAILING TO PROPERLY
           PRESENT A DEFENSE FOR APPELLANT, AND NOT
           OBJECTING TO THE IMPOSED SENTENCE[?]

           DID THE TRIAL COURT IMPOSE AN ILLEGAL SENTENCE ON
           JANUARY 07, 1977[?]

           SHOULD THE CASE BE REMANDED FOR FURTHER REVIEW,
           AND CORRECTION OF SENTENCE[?]

Appellant’s Brief at 7.

      Initially, we must determine whether the trial court properly treated

Appellant’s purported habeas corpus petition as a PCRA petition.           We

observe:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief.       42 Pa.C.S. § 9542;

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       Commonwealth v. Haun, [32 A.3d 697] ([Pa.]2011). Unless
       the PCRA could not provide for a potential remedy, the PCRA
       statute subsumes the writ of habeas corpus. [Commonwealth
       v.]    Fahy,    [737    A.2d    214,]    223–224     [Pa.1999];
       Commonwealth v. Chester, [733 A.2d 1242] (Pa.1999).[4]
       Issues that are cognizable under the PCRA must be raised in a
       timely PCRA petition and cannot be raised in a habeas corpus
       petition. See Commonwealth v. Peterkin, [722 A.2d 638]
       ([Pa.]1998); see also Commonwealth v. Deaner, 779 A.2d
       578 (Pa.Super.2001) (a collateral petition that raises an issue
       that the PCRA statute could remedy is to be considered a PCRA
       petition). Phrased differently, a defendant cannot escape the
       PCRA time-bar by titling his petition or motion as a writ of
       habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.Super.2013).

       Although Appellant purports to file a writ of habeas corpus, his claims

for relief fall within the purview of the PCRA, because (1) he is currently

serving a term of imprisonment, and (2) he alleges an illegal sentence claim.

42 Pa.C.S. § 9543(a).             Therefore, the lower court properly treated

Appellant’s alleged habeas corpus petition as a PCRA petition, and issued its

order as a denial of PCRA relief.         See Taylor, supra (treating appellant’s

writ of habeas corpus as a PCRA petition).

       Our review of a PCRA court’s decision “is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.”           Commonwealth v.

Koehler, 36 A.3d 121, 131 (Pa.2012).

____________________________________________


4
  Abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726
(Pa.2002).




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     Before addressing the merits of Appellant’s claims, we must first

consider the timeliness of his PCRA petition because it implicates the

jurisdiction of both this Court and the PCRA court.    Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal

denied, 50 A.3d 121 (Pa.2012).     “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”   Id. Further, to

“accord finality to the collateral review process[,]” the PCRA “confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).

     With respect to jurisdiction under the PCRA, this Court has further

explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).

This Court may review a PCRA petition filed more than one year after the

judgment of sentence becomes final only if the claim falls within one of the

following three statutory exceptions, which the petitioner must plead and

prove:

         § 9545. Jurisdiction and proceedings

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                                      *    *    *

           (b) Time for filing petition.–

              (1) Any petition under this subchapter, including a
           second or subsequent petition, shall be filed within one
           year of the date the judgment of sentence becomes final,
           unless the petition alleges and the petitioner proves that:
              (i) the failure to raise the claim 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.

42 Pa.C.S. § 9545(b)(1).        Further, even if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

      Finally, a heightened standard applies to a second or subsequent PCRA

petition     to     avoid   “serial   requests      for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                  A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”        Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006).        In a second or subsequent post-conviction proceeding, “all

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issues are waived except those which implicate a defendant’s innocence or

which raise the possibility that the proceedings resulting in conviction were

so unfair that a miscarriage of justice which no civilized society can tolerate

occurred.”      Commonwealth        v.   Williams,    660   A.2d   614,    618

(Pa.Super.1995).

      Appellant argues that the sentencing court erred in imposing a term of

life imprisonment under the version of 18 Pa.C.S. § 2502 in effect in 1977.

He claims that the court should have applied the version of Section 2502 in

effect in 1974, which he claims carried a penalty of ten (10) to twenty (20)

year’s incarceration.

      Instantly, Appellant’s judgment of sentence became final on February

6, 1977, thirty (30) days after the pronouncement of his sentence, which he

did not appeal. He filed this PCRA petition on June 15, 2012, over thirty-

four (34) years after the expiration of his time limit.      Thus, Appellant’s

petition is facially untimely, and we must determine whether Appellant has

pled and proved any of the exceptions to the PCRA time limitation. See 42

Pa.C.S. § 9545(b)(1).

      In his reply brief, Appellant attempts to invoke an exception to the

PCRA time bar by claiming that the facts upon which the claim is predicated

were unknown to him and could not have been ascertained by the exercise

of due diligence. In the first place, Appellant fails to explain why he did not

become aware of the alleged discrepancy between the 1974 and 1977


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versions of Section 2502 until 2012.          He fails, in other words, to

demonstrate that he raised this claim within 60 days of the date he first

could have presented it.    42 Pa.C.S. 9545(b)(2).    Moreover, Appellant did

not plead and prove this exception to the time bar in his PCRA petition, but

raised it for the first time in his reply brief. Thus, he has waived this issue.

See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007)

(“exceptions to the [PCRA] time bar must be pled in the PCRA petition, and

may not be raised for the first time on appeal”); see also Pa.R.A.P. Rule

302(a) (issues not raised in the lower court are waived and cannot be raised

for the first time on appeal).

      In short, Appellant’s petition is time-barred, and even if it were timely,

he has waived the sentencing issue that he now attempts to raise on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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