J-S08003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAJ KAREE EDGE

                            Appellant                 No. 163 WDA 2016


              Appeal from the PCRA Order dated January 19, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013435-1998
                                          CP-02-CR-0013774-1998

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                            FILED MARCH 24, 2017

        Pro se Appellant Raj Karee Edge appeals from the order dismissing his

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

           On May 10, 2001, following a jury trial, [A]ppellant was
           found guilty of first degree murder, criminal conspiracy,
           and firearms not to be carried without a license,[ 1 ] in
           connection with a shooting death in Pittsburgh on October
           4, 1998.    Appellant and his accomplices attacked the
           victim because he had allegedly burgled the residence of
           one of [A]ppellant’s accomplices. Upon learning that the
           victim may have been the burglar, [A]ppellant and his
           accomplices armed themselves with guns and went
           searching for the victim. After spotting the victim walking
           along a public street, [A]ppellant and his accomplices
           abandoned their vehicle and hid, lying in wait. As the
           victim approached, [A]ppellant and his accomplices sprang
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1
    18 Pa.C.S. §§ 2502(a), 903(a), and 6106(a), respectively.
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         from their hiding places and proceeded to repeatedly fire
         their guns at the victim. The victim was shot seven times
         and was dead when police arrived at the scene a short
         time later.

         Judgment of sentence was imposed on September 5,
         2001, with [A]ppellant receiving an aggregate term of life
         plus 13½ to 27 years’ imprisonment. On February 4,
         2004, this [C]ourt affirmed the judgment of sentence; and
         on February 18, 2005, our supreme court denied appeal.
         Commonwealth v. Edge, 849 A.2d 603 (Pa.Super.2004)
         (unpublished       memorandum),      appeal       denied,
         Commonwealth v. Edge, 582 Pa. 670, 868 A.2d 1197
         (2005). On January 31, 2006, [A]ppellant timely filed his
         first collateral petition. Counsel was appointed and an
         amended petition was filed. Following a December 4, 2006
         hearing, the court below denied the petition on the merits
         on December 7, 2006.

Commonwealth v. Edge, No. 2376 WDA 2006, at 1-2 (Pa. Super., Oct. 24,

2007) (unpublished mem.). Appellant appealed the denial of his first PCRA

petition to this Court, which we affirmed on October 24, 2007.        See id.

Appellant then petitioned the Pennsylvania Supreme Court for allowance of

an appeal, which denied the petition on June 24, 2008.

      Appellant thereafter filed a federal habeas corpus petition attacking his

convictions, which was denied by the Western District of Pennsylvania on

November 12, 2009.      Edge v. Lawler, No. 08-1009, 2009 WL 3806278

(W.D. Pa., Nov. 12, 2009) (mem. op.). Next, Appellant filed a second PCRA

petition, which was denied on April 29, 2015. Appellant did not appeal the

denial of this second PCRA petition.

      On August 7, 2015, Appellant filed a Petition for Writ of Habeas Corpus

Ad Subjiciendum, which the PCRA court regarded as another PCRA petition.

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On October 6, 2015, the PCRA court entered a notice of intent to dismiss the

PCRA petition pursuant to Pa.R.Crim.P. 907.             On October 20, 2015,

Appellant filed an objection to the Notice. On January 19, 2016, the PCRA

court dismissed the PCRA petition as time-barred.

      On January 23, 2016, Appellant filed a timely notice of appeal to this

Court. In that pro se appeal, Appellant raises the following issues, as stated

in his brief:

          I.       Did the Common Pleas Court err[] in construing
          or dismissing [Appellant]’s Writ of Habeas Corpus Ad
          Subjiciendum as a Post Conviction Relief Act petition?

          II.      Did the Commonwealth create a procedural due
          process of law violation by lodging the criminal charge of
          18 Pa. C.S.A. § 2501 Criminal Homicide?

          III.     Did the Court have statutory authorization to
          instruct the Jury on First Degree Murder where
          [Appellant]'s trial was not deemed a capital case?

          IV.     Did the Court have statutory authorization to
          impose a sentence of life imprisonment sua sponte?

Appellant’s Brief at 8.

      We initially address whether the PCRA court erred in considering

Appellant’s writ of habeas corpus ad subjiciendum to be a PCRA petition.

Appellant’s Brief at 11-12.      We have explained our standard and scope of

review as follows:

                Ordinarily, an appellate court will review a grant or
                denial of a petition for writ of habeas corpus for
                abuse of discretion, see, e.g., Commonwealth v.
                Reese, 774 A.2d 1255, 1261 (Pa.Super.2001), but
                for questions of law, our standard of review is de

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           novo, and our scope of review is plenary. See
           Buffalo Township v. Jones, 571 Pa. 637, 644 n. 4,
           813 A.2d 659, 664 n. 4 (2002).

        Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511,
        521 (2007).

Commonwealth v. Stafford, 29 A.3d 800, 802 (Pa. Super. 2011).

     The PCRA provides: “The action established in this subchapter 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. § 9542. We have stated:

        The PCRA sets forth its scope as follows:

           This subchapter is not intended to limit the
           availability of remedies in the trial court or on direct
           appeal from the judgment of sentence, to provide a
           means for raising issues waived in prior proceedings
           or    to      provide    relief     from     collateral
           consequences of a criminal conviction.

        42 Pa.Cons.Stat.Ann. § 9542 (emphasis supplied). In
        construing this language, Pennsylvania Courts have
        repeatedly held that the PCRA contemplates . . .
        challenges to the propriety of a conviction or a sentence.

Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (en banc)

(emphasis in original), appeal denied, 47 A.3d 846 (Pa. 2012); see also

Commonwealth v. Lantzy, 736 A.2d 564, 569 (Pa. 1999) (the PCRA is

intended to “provide the sole means for obtaining collateral review and

relief, encompassing all other common law rights and remedies, including

habeas corpus”).   In the current action, all of Appellant’s claims in his

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petition challenge the propriety of his conviction and sentence. Therefore,

the PCRA court correctly considered Appellant’s petition as a PCRA petition,

and not a writ of habeas corpus ad subjiciendum. See Masker, 34 A.3d at

843.

       Before addressing Appellant’s remaining issues, we next examine

whether Appellant’s PCRA petition was time-barred, see PCRA Ct. Op.,

8/9/16,     at   2,   since   the    timeliness   requirements   in    the   PCRA   are

jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.

Super. 2013).         “Our standard of review of a PCRA court’s dismissal of a

PCRA      petition    is   limited   to   examining   whether    the    PCRA   court’s

determination is supported by the evidence of record and free of legal error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc), appeal denied, 839 A.2d 352 (Pa. 2003).

       A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment of sentence

becomes final. See 42 Pa.C.S. § 9545(b)(1). 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 review.” Id. § 9545(b)(3).

       Here, Appellant’s judgment of sentence became final on May 19, 2005,

upon the expiration of the time for filing an application for review on

certiorari to the United States Supreme Court.                   See 42 Pa.C.S. §


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9545(b)(3); see also U.S. Sup. Ct. R. 13 (“A petition for a writ of certiorari

seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when it is filed

with the Clerk within 90 days after entry of the order denying discretionary

review”).    Thus, Appellant had one year from that date, or until May 19,

2006, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b). Appellant

did not file the instant petition until August 7, 2015, more than nine years

after his judgment of sentence became final.       Accordingly, the PCRA court

had no jurisdiction to entertain Appellant’s petition unless Appellant pleaded

and proved one of the three statutory exceptions to the PCRA’s time bar.

See id. § 9545(b)(1).2




____________________________________________
2
    Those exceptions are:

           (i) the failure to raise the claim previously was the result
           of interference of 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.

(Footnote Continued Next Page)

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       Appellant does not plead and prove any of these statutory exceptions.

Appellant’s only references to timeliness are:        “Where an information

charges no crime, the court lacks jurisdiction to try the accused, and a

motion to quash the information or charge is always timely”; and “the issue

of subject matter jurisdiction can be raised at any time during the case even

after a plea has been entered.” Appellant’s Brief at 12. Appellant does not

explain how these bald statements apply to his case. Neither of these

concepts fall within one of the three statutory exceptions to the PCRA’s time

bar, as they do not demonstrate government interference, allege new facts

or evidence, or assertion of a newly recognized constitutional right. See 42

Pa.C.S. § 9545(b)(1). Appellant himself specifically admits:

          [A]ppellant avers that he is not alleging that the truth-
          determining process underlying his conviction and
          sentence was undermined by constitutional violations or
          ineffective assistance of counsel.             Nor alleging
          governmental interference with his right to appeal . . .
          Additionally he is not alleging after-discovered exculpatory
          evidence. Therefore none of the bases for relief under the
          PCRA address the unique situation presented in this case.

Appellant’s Brief at 11. Thus, we agree with the PCRA court that Appellant

failed to plead and prove any exceptions to the PCRA’s jurisdictional time-

bar.   Therefore, neither the trial court nor this Court have jurisdiction to

consider Appellant’s remaining issues.
                       _______________________
(Footnote Continued)
42 Pa.C.S. § 9545(b)(1). A petition invoking one of the exceptions must be
filed within sixty days of the date the claim could have been presented. Id.
§ 9545(b)(2).



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     Having discerned no abuse of discretion or error of law, we affirm the

order below. See Wilson, 824 A.2d at 333.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017




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