J-S65008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FELIX ALVAREZ

                        Appellant                    No. 402 EDA 2017


               Appeal from the PCRA Order January 4, 2017
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0004764-2007


BEFORE: OLSON, OTT, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 13, 2017

      Appellant, Felix Alvarez, appeals from the order entered on January 4,

2017, treating and dismissing his habeas corpus petition as an untimely

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows. On June 25, 2006, Appellant participated in a shooting outside an

Allentown nightclub. Bullets struck and killed a woman and a male victim

sustained injuries to his chest and foot. In November 2009, a jury convicted

Appellant of third-degree murder, attempted murder, aggravated assault,

four counts of recklessly endangering another person (REAP), and criminal
J-S65008-17



conspiracy.1 On December 23, 2009, the trial court sentenced Appellant to

an aggregate term of twenty-eight to sixty years of imprisonment.               We

affirmed Appellant’s judgment of sentence on April 1, 2011.                    See

Commonwealth v. Alvarez, 29 A.3d 822 (Pa. Super. 2011) (unpublished

memorandum). Appellant did not seek further review. As such, Appellant’s

judgment became final on May 1, 2011, when the time to petition for

allowance of appeal to our Supreme Court expired.                See 42 Pa.C.S.A.

§ 9545(b)(3) (judgment of sentence becomes final upon the expiration of

the time for seeking further review);            see also Pa.R.A.P. 1113(a) (“... a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed ...”).

        On February 6, 2012, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel and conducted a hearing, on June 5, 2012, wherein

several witnesses testified regarding various issues.             The PCRA court

ultimately denied relief. We affirmed that decision and our Supreme Court

denied further review. See Commonwealth v. Alvarez, 91 A.3d 1278 (Pa.

Super. 2013) (unpublished memorandum), appeal denied, Commonwealth

v. Alvarez, 93 A.3d 461 (Pa. 2014).




____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 2502/901, 2702, 2705, and 903, respectively.



                                           -2-
J-S65008-17



       On November 20, 2014, Appellant filed a pro se application for relief.

The trial court treated the filing as a PCRA petition and dismissed it as

untimely on December 12, 2014. On July 17, 2015, this Court affirmed the

dismissal in an unpublished memorandum.                  See Commonwealth v.

Alvarez, 125 A.3d 452 (Pa. Super. 2015) (unpublished memorandum). Our

Supreme Court denied further review.             See Commonwealth v. Alvarez,

129 A.3d 1240 (Pa. 2015).

       Instantly, Appellant filed a pro se motion for habeas corpus relief on

December 2, 2016. The trial court determined that the issues raised therein

were cognizable claims under the PCRA and subject to the PCRA’s

jurisdictional time-bar.      Thus, on December 6, 2016, the trial court gave

Appellant notice of its intent to dismiss the petition without an evidentiary

hearing pursuant to Pa.R.Crim.P. 907.            Appellant filed a timely response.

However, because Appellant did not raise any exceptions to the PCRA’s

one-year timing requirement, the trial court determined that Appellant’s

collateral petition was patently untimely. As such, the trial court entered an

order dismissing Appellant’s PCRA petition on January 4, 2017. This timely

appeal resulted.2
____________________________________________


2   Appellant filed a pro se notice of appeal and corresponding concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On January 26, 2017, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a). Appellant and the Commonwealth filed timely briefs with this
Court. Thereafter, Appellant filed a timely response to the Commonwealth’s
brief.



                                           -3-
J-S65008-17



      Appellant presents the following issues, pro se, for our review:

      A. Whether the Commonwealth failed to acquit on all the
         charges [on Appellant’s] claim of double jeopardy on lesser
         included offenses o[n the] first criminal information,
         third[-]degree murder and [the] lesser included offenses.
         The evidence did not support a conviction.

      B. Whether the evidence presented at trial was both legally and
         factually insufficient to prove that [Appellant] acted with
         malice as required for a third[-]degree murder conviction, as
         there was no malice to convict for a first[-]degree murder
         conviction.

      C. Whether there was insufficient evidence to support a
         first[-]degree murder conviction when [Appellant] was
         acquitted on the first[-]degree murder and lesser included
         offenses and conspiracy conviction.

      D. Whether the lower court[’]s imposition of an aggregate
         sentence of twenty[-]eight (28) to (60) sixty years [was
         illegal].

Appellant’s Brief at 4.

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

determine whether there was jurisdiction to entertain Appellant’s petition.

This Court has previously determined:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. Unless the PCRA could not
      provide for a potential remedy, the PCRA statute subsumes the
      writ of habeas corpus. Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be
      raised in a habeas corpus petition. Phrased differently, a
      defendant cannot escape the PCRA time-bar by titling his
      petition or motion as a writ of habeas corpus.

      In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007),
      [this Court] collected cases and reiterated that all motions filed
      after a judgment of sentence is final are to be construed as PCRA


                                     -4-
J-S65008-17


      petitions. More recently, in Commonwealth v. Jackson, 30
      A.3d 516 (Pa. Super. 2011), this Court held that a defendant's
      motion to correct his illegal sentence was properly addressed as
      a PCRA petition, stating broadly, “any petition filed after the
      judgment of sentence becomes final will be treated as a PCRA
      petition.” Id. at 521. [However, t]he common law writ of
      habeas     corpus   has     not   been   eliminated.   In   both
      Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) and
      Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007), our
      Supreme Court held that claims that fall outside the sphere of
      the PCRA can be advanced via a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013) (some

internal citations omitted; footnote incorporated).

      Here, as set forth above, to the extent that Appellant’s current

challenge to the imposition of his aggregate sentence constituted an illegal

sentence, we have determined that the PCRA is the proper means of

advancing and reviewing such a claim.        Taylor, supra, citing Jackson.

Sufficiency of the evidence claims are properly asserted on direct appeal, but

can also be raised under the PCRA in terms of counsel ineffectiveness. See

Commonwealth v. Natividad, 938 A.2d 310, 329 (Pa. 2007). Accordingly,

we conclude that the trial court properly treated Appellant’s current petition

under the PCRA.

      This Court has recently stated:

      A PCRA petition, including a second or subsequent petition, must
      be filed within one year of the date the judgment becomes final,
      unless appellant can plead and prove one of three exceptions set
      forth under 42 Pa.C.S.A. § 9545(b)(1), and that the petition was
      filed within 60 days of the date the claim could have been
      presented.     These time limits are jurisdictional in nature,
      implicating a court's very power to adjudicate a controversy.
      Accordingly, the period for filing a PCRA petition is not subject to
      the doctrine of equitable tolling. Instead, the time for filing can

                                     -5-
J-S65008-17


        be extended only if the PCRA permits it to be extended, i.e., by
        operation of one of the statutorily enumerated exceptions to the
        PCRA time-bar. Our Supreme Court has repeatedly stated it is
        the petitioner's burden to allege and prove that one of the
        timeliness exceptions applies.

Commonwealth v. Smallwood, 155 A.3d 1054, 1059–1060 (Pa. Super.

2017) (internal citations, quotations, brackets, and footnote omitted).

Moreover, “[i]t is well settled that allegations of ineffective assistance of

counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

        In this case, as previously mentioned, Appellant’s judgment of

sentence became final on May 1, 2011. Thus, his current petition, filed on

December 2, 2016, is patently untimely.       Upon review, Appellant did not

plead or prove an exception to the PCRA’s one-year timing requirement. We

note that in his reply to the Commonwealth’s appellate brief, Appellant cites

two Pennsylvania Supreme Court cases for the first time, ostensibly

attempting to invoke an exception to the PCRA’s timing requirement. See

Appellant’s Reply Brief, at 2-3. However, exceptions to the PCRA cannot be

raised for the first time on appeal. See Wharton, 886 A.2d at 1126, citing

Pa.R.A.P. Rule 302 (stating “issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).      Hence, Appellant’s

current petition was untimely and not subject to exception. Accordingly, the

trial   court   properly dismissed Appellant’s   PCRA petition for    lack of

jurisdiction.

        Order affirmed.


                                     -6-
J-S65008-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




                          -7-
