J-S57029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ALBERT BAILEY CROSBY

                            Appellant                  No. 561 EDA 2016


              Appeal from the PCRA Order dated January 28, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0804181-1961

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                         FILED DECEMBER 05, 2017

       Appellant Albert Bailey Crosby appeals pro se from the order

dismissing his fifth petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 We affirm.

       The PCRA court summarized the procedural history of this case:

             [Appellant] was charged with the murders of his wife and
       her lover.     His procedural history is remarkably complex.
       [Appellant] initially pled guilty to two charges of first degree
       murder on March 12, 1962, and the trial court imposed a
       sentence of life imprisonment. [Appellant] subsequently filed a
       writ of habeas corpus at the state level, which was denied. The
       denial was affirmed by the Pennsylvania Supreme [Court].
       [Appellant] next filed a writ of habeas corpus at the federal level.
       The writ was also denied. On appeal, however, the Third Circuit
       Court reversed and directed the award of a new trial.
       [Appellant] was tried before a jury, and was found guilty on both
       counts of first degree murder. Again, the court imposed a
       sentence of life imprisonment. The Supreme Court affirmed
       [Appellant’s] sentence on June 28, 1971.
____________________________________________
1Appellant filed unsuccessful PCRA petitions seeking post-conviction relief in
1981, 1998, 2004 and 2008. PCRA Court Opinion, 1/19/17, at 2 n. 4.
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            On April 28, 1977, [Appellant’s] request to the Governor of
     Pennsylvania for a commutation of his sentence was approved,
     and [Appellant] was released from prison on parole until 1999.
     In 1983, [Appellant] was arrested for attempted rape, indecent
     exposure, and simple assault. In 1984, [Appellant] was arrested
     for possession of a firearm. In both instances, the charges were
     withdrawn prior to trial due to the witnesses’ failure to appear.
     In 1994, [Appellant] was arrested on four counts of violating the
     firearms act. Again, the charges were dismissed before trial.
     However, given the three arrests for eight separate criminal
     offenses, [Appellant’s] parole was revoked, and he was returned
     to prison to serve the remainder of his life sentence.

           [Appellant] filed a writ of habeas corpus on June 14, 2012.
     Thereafter, [he] filed a pro se PCRA petition, his fifth, on
     September 24, 2015. Pursuant to Pennsylvania Rule of Criminal
     Procedure 907, [Appellant] was served with notice of the court’s
     intention to dismiss his PCRA petition on December 10, 2015.
     [Appellant] filed a response to the court’s notice on January 20,
     2016. This court dismissed the petition as untimely without
     exception and denied habeas corpus relief on January 28, 2016.
     On February 8, 2016, [Appellant] filed a timely notice of appeal
     to the Superior Court.

PCRA Court Opinion, 1/19/17, at 1-2 (footnotes omitted).

     Appellant raises five issues, which we repeat verbatim:

     1.    Can [Appellant] be held continuously by the Department of
     Corrections without a legal and/or valid commitment order and
     judgment of sentence order signed by the sentencing judge and
     validated by statute and mandated by 42 Pa.C.S.A. § 9764?

     2.     Is [Appellant’s] litigation timely when the government
     interfered by not providing his requested trial records of
     testimony and judgment of sentence order per 42 Pa.C.S.A. §
     9545?

     3.   Did [Appellant] submit his petition timely when hearing
     Alleyne within 60 days?

     4.    Was [Appellant] entitled to a fair trial where a psychiatrist
     and the victim’s wife were not permitted to testify, Pa.
     Constitution Article 1 § 9, 5th Amendment U.S. Constitution?
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J-S57029-17



       5.   Is [Appellant] allowed the assistance of effective counsel,
       PA Constitution Art 1 § 9, 6th Amendment U.S. Constitution?

Appellant’s Brief, 4/28/17, at 5-6 (unpaginated); restated verbatim in

Appellant’s “New Brief”, 7/14/17, at 5-6 (unpaginated).2

       It is well-settled that when reviewing the propriety of an order denying

PCRA relief, this Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).    The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85

A.3d 1095, 1100 (Pa. Super. 2014).

       A PCRA petition must be timely. In order to be timely, it must be filed

within one year of the date the petitioner’s judgment of sentence becomes

final. 42 Pa.C.S. § 9545(b)(1). 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. §

9545(b)(3).     However, an untimely petition may be considered when the

petition alleges, and the petitioner proves, that one of the three limited

exceptions to the time for filing the petition set forth at 42 Pa.C.S. §

____________________________________________
2 Appellant filed two briefs and refers to his second brief as his “New Brief.”
In light of our disposition, we need not comment on the propriety of
Appellant’s second brief, which may be considered a reply brief.

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J-S57029-17


9545(b)(1) is met. A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2). In order to be entitled to proceed under an exception

to the PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under Section 9545(b)(2).         Commonwealth v. Carr, 768 A.2d

1164, 1167 (Pa. Super. 2001).

      Whether a PCRA Petition is timely is a question of law; this Court’s

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).                “The

filing mandates of the PCRA are jurisdictional in nature and are strictly

construed.”   Id.   Consequently, “[a]n untimely petition renders this Court

without jurisdiction to afford relief.” Id.

      Here, the PCRA court explained:

            [Appellant’s] judgment of sentence became final on or
      about September 27, 1971, ninety days after our Supreme Court
      denied his petition for allowance of appeal and the time for
      seeking a petition for writ of certiorari in the United States
      Supreme Court expired. See id. § 9545(b)(3); U.S.Sup.Ct.R. 22
      (effective July 1, 1970) (renumbered Rule 13). His petition, filed
      on September 24, 2015 was therefore manifestly untimely by
      approximately forty-four (44) years. See 42 Pa. Cons. Stat. §
      9545(b)(1).

PCRA Court Opinion, 1/19/17, at 3 (omitting footnote 6, in which the court

held that Appellant did not qualify for the PCRA’s one-year “grace period”

until January 16, 1997, for defendants filing their first PCRA petition and


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J-S57029-17


whose conviction became final prior to PCRA’s effective date of January 16,

1996).

      Appellant’s petition filed on September 24, 2015 is clearly untimely.

The PCRA court explained why Appellant is not entitled to relief:

             In an attempt to establish a limited exception to the
      statutory time-bar, [Appellant] presented the Pennsylvania
      Supreme Court’s decision in Commonwealth v. Hopkins, 117
      A.3d 247 (Pa. 2015) and the United States Supreme Court’s
      decision in Alleyne v. United States, 133 S.Ct. 2151 (2013) in
      an effort to invoke the “newly-recognized constitutional right”
      statutory exception, 42 Pa. Cons. Stat. § 9545(b)(1)(iii).
      Neither case, however, announced a new constitutional right that
      has been held to apply retroactively to untimely petitions on
      collateral review. See Commonwealth v. Washington, 142
      A.3d 810, 813-820 [(Pa. 2016)] (addressing the retroactivity of
      Alleyne); see also Commonwealth v. Whitehawk, [146 A.3d
      266, 271] (Pa. Super. 2016) (“the Hopkins decision did not
      announce a “new rule,” but rather simply assessed the validity of
      Section 6317 under Alleyne . . .”). Furthermore, [Appellant]
      failed to invoke either Alleyne or Hopkins within sixty days of
      the date they were decided, namely June 17, 2013 and June 15,
      2015 respectively. See 42 Pa. Cons. Stat. § 9545(b)(2).

             The PCRA court did, however, evaluate [Appellant’s] claim
      raised in his June 28, 2012 writ of habeas corpus claiming that
      the Department of Corrections (“DOC”) lacked legal authority for
      his continued detention due to the lack of a written sentencing
      order, in contravention of 42 Pa. Cons. Stat. § 9764(a)(8) and
      37 Pa. Code § 91.3. See Joseph v. Glunt, 96 A.3d 365 (Pa.
      Super. 2014) (concluding that the PCRA did not subsume an
      illegal-sentence claim based on the inability of the Department of
      Corrections to produce a written sentencing order). A review of
      the record confirmed that [Appellant] was sentenced on
      November 17, 1970 by the Honorable Emanuel Beloff, the
      Honorable James Cavanaugh, and the Honorable Joseph
      McGlynn to a term of life imprisonment.            A copy of the
      sentencing order is being maintained by the Clerk of Courts of
      this court, and the docket reflects the pronouncement of
      sentence. Additionally, the Superior Court has held that even in
      the absence of a written sentencing order, the DOC retains
      detention authority. Id. . . .
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J-S57029-17


            [Appellant’s] PCRA petition could not be considered
      because he failed to satisfy his burden of establishing an
      exception to the PCRA’s statutory time-bar.           Furthermore,
      although falling outside the ambit of the PCRA, [Appellant’s]
      challenge to the legality of his detention was meritless.

PCRA Court Opinion, 1/19/17, at 4-5 (footnote omitted).

      Upon review of the record, and based on the foregoing discussion, we

find no error in the determination of the PCRA court. Accordingly, we affirm

the order dismissing Appellant’s fifth petition for post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2017




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