J-S21024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT EDWARDS                             :
                                               :
                       Appellant               :   No. 1365 EDA 2018

                   Appeal from the PCRA Order April 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0305612-1973


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 14, 2019

       Robert Edwards (Appellant) appeals pro se from the dismissal of his

sixth petition seeking relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

       On November 28, 1973, a jury convicted Appellant of first-degree

murder and aggravated robbery.1 On May 2, 1974, Appellant was sentenced

to a term of life imprisonment. The Supreme Court of Pennsylvania affirmed

his judgment of sentence on October 3, 1975.            See Commonwealth v.



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1 At the time of Appellant’s conviction, felony murder was classified as murder
of the first degree. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A.
§ 2502(a). The legislature subsequently amended 18 Pa.C.S.A. § 2502 and
reclassified felony murder as murder of the second degree. See Act of March
26, 1974, P.L. 213, No. 46, § 4; Act of April 28, 1978, P.L. 84, No. 39, § 1,
18 Pa.C.S.A. § 2502(b).
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Edwards, 344 A.2d 460 (Pa. Super. 1975) (per curiam). Appellant did not

petition the United States Supreme Court for certiorari.

       On March 15, 1977, Appellant filed pro se his first petition seeking post-

conviction relief under the precursor to the PCRA, the Post Conviction Hearing

Act (PCHA).2 Following the appointment of counsel, the filing of an amended

petition, and an evidentiary hearing, the PCHA court dismissed the petition.

Appellant appealed; the dismissal of his first petition was affirmed on appeal.

See Commonwealth v. Edwards, 417 A.2d 685 (Pa. Super. 1979)

(unpublished memorandum).

       On October 30, 1980, Appellant filed a second petition under the PCHA;

the PCHA court dismissed the petition, and that dismissal was also affirmed

on appeal.3 See Commonwealth v. Edwards, 469 A.2d 295 (Pa. Super.

1983) (unpublished memorandum).
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2Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et
seq., 19 P.S. § 1180-1 et seq. (Supp. 1979-80). The PCHA was repealed in
part, modified in part, and replaced by the PCRA, effective April 13, 1988.
See Act of Apr. 13, 1988, P.L. 336, No. 47, § 4.

3 The Commonwealth of Pennsylvania notes in its brief that Appellant was
paroled on February 21, 1988, and that the decision of the Pennsylvania Board
of Probation and Parole was meant to “give effect” to a commutation. See
Commonwealth Brief at 4; Appendix. The Commonwealth correctly notes that
this issue is relevant to Appellant’s eligibility for PCRA relief. Id. (citing 42
Pa.C.S.A. § 9543(a)(1)(i)). While the parole decision was not included in the
record certified on appeal to this Court, Appellant’s address of record indicates
that he is no longer incarcerated, and his sentence of life imprisonment
indicates that he remains under supervision. The Prisons and Parole Code
provides that the Parole Board may exercise its discretion to grant parole “only
after[ ] the expiration of the minimum term of imprisonment fixed by the court



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       On January 25, 2001, Appellant filed a third petition seeking post-

conviction relief.4     Appointed counsel filed a Turner/Finley5 letter and

accompanying motion to withdraw as counsel.         The PCRA court granted

counsel’s motion and dismissed the petition. The dismissal was affirmed on

appeal.     Commonwealth v. Edwards, 850 A.2d 6 (Pa. Super. 2004)

(unpublished memorandum).

       On June 4, 2004, Appellant filed a fourth petition seeking post-

conviction relief.    The PCRA court dismissed the petition as untimely; this

Court affirmed the dismissal on appeal. See Commonwealth v. Edwards,

927 A.2d 650 (Pa. Super. 2007) (unpublished memorandum), appeal denied,

932 A.2d 1286 (Pa. 2007).




____________________________________________


in its sentence or by the Board of Pardons in a sentence which has been
reduced by commutation.” 61 Pa.C.S.A. § 6137(3). Notwithstanding, the
Parole Board may not release on parole any inmate “condemned to death or
serving life imprisonment.” 61 Pa.C.S.A. § 6137(a)(1).

4 The PCRA provides that a defendant whose conviction becomes final prior to
the effective date of the current version of the PCRA has one year after the
effective date to timely file a first PCRA petition. See, e.g., Commonwealth
v. Alcorn, 703 A.2d 1054, 1056–57 (Pa. Super. 1997) (holding that where a
petitioner’s judgment of sentence became final on or before the effective date
of the January 16, 1996 amendment to the PCRA, a first PCRA petition could
be filed by January 16, 1997, even if the conviction in question became final
more than a year prior to the date of the filing). Appellant’s petition was
neither his first, nor was it filed within one year of the date the amendment
took effect.

5 Commonwealth v. Turner, 544 A.2d 927 (Pa.                      1988),   and
Commonwealth v. Finley, 550 A.2d 213 (1988) (en banc).

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      On May 15, 2012, Appellant filed a fifth petition seeking post-conviction

relief. The PCRA court dismissed the petition as untimely; this Court affirmed

the dismissal on appeal. See Commonwealth v. Edwards, 97 A.3d 806 (Pa.

Super. 2014) (unpublished memorandum).

      On May 12, 2016, Appellant filed a sixth petition, which he characterized

as a petition for writ of habeas corpus. In the petition, he argued that he was

convicted of first-degree murder but lacked the specific intent to commit the

killing. See Petition for Writ of Habeas Corpus, 5/12/16, at 1-2. Appellant

did not acknowledge the fact that since his conviction, the degrees of murder

were reclassified, or that he had been convicted under a theory of felony

murder, now codified as second-degree murder. Id. Appellant also argued

that his sentence violated due process, and that he was actually innocent of

the crime for which he had been convicted. Id. at 1-8.

      On September 26, 2017, the PCRA court sent Appellant notice pursuant

to Pa.R.Crim.P. 907 that his petition was untimely and would be dismissed

without a hearing. Appellant pro se filed three responses to the court’s Rule

907 notice, arguing that the PCRA court erred in treating his petition as a

PCRA and not a petition for a writ of habeas corpus. See Petitioner’s Response

to the Court Notice to Dismiss, 10/14/17, at 1-3. On April 27, 2018, the court

formally dismissed Appellant’s petition as untimely, and Appellant timely filed

this appeal.

      Appellant presents a single issue for our review:




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      Whether habeas corpus reaches Appellant, an alleged
      accomplice/conspirator sentenced to [l]ife [i]mprisonment and
      since a lesser degree of guilt necessarily denotes a lesser sentence
      as a challenge to the legality of his sentence restraining liberties;
      a change in law that constitutes a violation of the Due Process
      Clause of the Fourteenth Amendment requires proof of specific
      intent to kill for [first-]degree murder under [18 Pa.C.S.A. §
      2502(a)-(b)], did the lower court abuse[] its discretion when it
      transferred Appellant’s case from civil court to the criminal division
      and deem[ed] this challenge a filing under the Post-Conviction
      Relief Act (PCRA)[?]

Appellant’s Brief at 3 (answer omitted).

      Initially, we observe that Appellant’s mislabeled habeas petition must

be considered under the PCRA. The PCRA expressly states that it “shall be

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose that exist when

this subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S.A. § 9542. As this Court has explained:

      Under the plain words of the statute, if the underlying substantive
      claim is one that could potentially be remedied under the PCRA,
      that claim is exclusive to the PCRA. It is only where the PCRA
      does not encompass a claim that other collateral procedures are
      available.

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (internal

citations omitted). A petitioner cannot escape the timeliness requirements of

the PCRA by mislabeling his petition. See Commonwealth v. Taylor, 65

A.3d 462, 466 (Pa. Super. 2013); Commonwealth v. Mercado, 826 A.2d

897, 899 (Pa. Super. 2003), appeal denied, 832 A.2d 436 (Pa. 2003) (stating

petition for habeas corpus relief must first satisfy jurisdictional PCRA

timeliness requirements).


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       Here, Appellant’s underlying substantive claims concern the legality of

his sentence, alleged constitutional violations, and his actual innocence, which

are claims that are cognizable under the PCRA. See Commonwealth v. Abu-

Jamal, 833 A.2d 719, 738 (Pa. 2003) (noting that although the PCRA does

not use the term “actual innocence,” it specifically provides for an action by

which persons convicted of crimes they did not commit may obtain collateral

relief); see also Commonwealth v. Voss, 838 A.2d 795 (Pa. Super. 2003);

see also 42 Pa.C.S.A. § 9542 (“This subchapter provides for an action by

which persons . . . serving illegal sentences may obtain collateral relief.”).

Accordingly, the court properly treated Appellant’s petition for a writ of habeas

corpus as a request for relief under the PCRA.

       “On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021,

1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d

586, 593 (Pa. 2007)).     “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo    standard   of   review   to   the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

       Instantly, we must first address the timeliness of Appellant’s petition.

Because the PCRA’s time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address a petition’s merits, a petitioner


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seeking post-conviction relief must file a petition within one year of the

petitioner’s    judgment       of   sentence      becoming   final.    See,   e.g.,

Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018); see also

42 Pa.C.S.A. § 9545(b)(1). Section 9545 of the PCRA requires that “[a]ny

petition under this subchapter, including a second or subsequent petition, shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The timeliness requirement of the PCRA is “mandatory and

jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-

85 (Pa. Super. 2008). Therefore, “no court may disregard, alter, or create

equitable exceptions to the timeliness requirement in order to reach the

substance of a petitioner’s arguments.” Id. at 785.

       Appellant’s petition is patently untimely.       The Pennsylvania Supreme

Court affirmed Appellant’s judgment of sentence on October 3, 1975. Under

the then-effective U.S. Sup. Ct. R. 22,6 Appellant had 30 days to petition for

certiorari. See Wilkins v. United States, 99 S. Ct. 1829 (1979). 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.”    42 Pa.C.S.A. § 9545(b)(3).           Therefore, Appellant’s judgment of

____________________________________________


6U.S. Sup. Ct. R. 22 was effective July 1, 1954, through June 30, 1980; it
was replaced by U.S. Sup. Ct. R. 13, allowing ninety days for such a petition.




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sentence became final on November 3, 1975, and he had until November 3,

1976, to meet the PCRA’s time restrictions.7 The underlying petition was not

filed until May 12, 2016, almost 40 years later.

       It is well-settled that a court does not have jurisdiction to entertain a

petition filed after the one year time-bar unless the petitioner pleads and

proves one of the time-bar exceptions. The exceptions include:

       (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Until recently, a petition invoking an exception had to be filed within 60

days of the date the claim could have been presented. However, effective

December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), and



____________________________________________


7  See 1 Pa.C.S.A. § 1908 (noting that the computation of time excludes the
first and last day of a period, and that when the last day of a period falls on a
Saturday, Sunday, or legal holiday, that day may be omitted from
computation). In the instant case, the last day of the period fell on Sunday,
November 2, 1975.

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now provides that a PCRA petition invoking a timeliness exception must be

filed within one year of the date the claim could have been presented. See

Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3. Although we recognize the

change in the law from 60 days to one year, the change does not impact

Appellant, who filed his petition on May 12, 2016.

       Appellant contends that he is actually innocent of first-degree murder;

that he is serving an illegal sentence; and that his sentence is the result of

constitutional error. See Appellant’s Brief at 6. Appellant argues that he was

convicted as an accomplice to felony murder at a time when the conviction

carried a mandatory life sentence, but incorrectly asserts that under the new

law, “an accomplice sentence [for felony murder] should be no more than

twenty years.”8 Id. at 10. Appellant raises several convoluted constitutional

arguments that essentially assail the legality of his sentence, including that

his mandatory life sentence for felony murder was unconstitutional because

he did not have the specific intent to kill.     Id. at 10-17.   Additionally, he

attempts generally to invoke the time-bar exceptions and argue that “the



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8 Murder of the second degree carries a mandatory life sentence, even when
a defendant is convicted under a theory of accomplice liability.        See
Commonwealth v. Lewis, 718 A.2d 1262, 1264-65 (Pa. Super. 1998); see
also 18 Pa.C.S.A. § 2502(b) (providing that a criminal homicide constitutes
murder of the second degree when it is committed while defendant was
engaged as a principal or an accomplice in the perpetration of a felony); 18
Pa.C.S.A. § 1102(b) (providing that a person who has been convicted of
murder of the second degree shall be sentenced to a term of life
imprisonment).

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actual innocence standards for sentences . . . are so unconstitutionally vague

as to its application to over-come the statutory time bar.” Id. at 12.

      Appellant addresses the time bar exceptions for the first time in his brief

on appeal; accordingly, because he did not raise the exceptions in his petition

before the PCRA court, he has waived these arguments before this Court. See

Commonwealth v. Lauro, 819 A.2d 100, 103–04 (Pa. Super. 2003);

Pa.R.A.P. 302(a) (issues not raised in the lower court are waived on appeal).

Nor do Appellant’s other arguments merit relief. As noted above, the PCRA

provides the sole means of relief for petitioners seeking to challenge the

legality of their sentences on collateral review, and for those seeking relief

from sentences for crimes they did not commit.       Such challenges must be

raised in a timely petition or qualify for one of the statutory exceptions. See

Abu-Jamal, 833 A.2d at 738; Voss, 838 A.2d at 799-800; 42 Pa.C.S.A. §

9542. Appellant’s challenges have not been raised or preserved in a timely

fashion.

      For the above reasons, Appellant has failed to plead and prove an

exception to the PCRA’s time-bar, and is not entitled to relief. Because the

PCRA court did not abuse its discretion, we affirm the order dismissing

Appellant’s petition for lack of jurisdiction.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




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