J-S81035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RUSSELL WESLEY MOSS

                            Appellant                 No. 1582 EDA 2016


                    Appeal from the PCRA Order May 9, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002091-2002


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 23, 2016

         Appellant Russell Moss appeals from the order of the Court of

Common Pleas of Delaware County denying his fourth petition pursuant to

the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm the

PCRA court’s order.

        In July 2003, Appellant entered open guilty pleas to third-degree

murder and solicitation to commit murder in connection with the 1983

shooting of Ellen Lewis. Appellant admitted to hiring Rodney Griffin to kill

Ms. Lewis, who was cooperating with Philadelphia police in their investigation

of a unrelated bank fraud scheme in which Lewis and Appellant had been
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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involved.   Griffin was initially convicted of first-degree murder of Ellen Lewis

and sentenced to death. In exchange for his testimony against Appellant,

Griffin was removed from death row and allowed to serve a life sentence.

On September 23, 2003, the trial court sentenced Appellant to eight to

twenty years imprisonment on the murder charge and a concurrent term of

five to ten years imprisonment on the solicitation charge.           This Court

affirmed the judgment of sentence on February 28, 2005.

     Appellant filed his initial PCRA petition, which the lower court

dismissed on December 28, 2006.         This Court affirmed the dismissal on

October 11, 2007.      Appellant filed his second PCRA petition on July 21,

2014, which was dismissed as untimely filed. On November 17, 2015, this

Court affirmed the dismissal of his second PCRA petition. While his second

PCRA petition was pending, Appellant filed his third PCRA petition on April

20, 2015, which the court dismissed without prejudice on April 27, 2015.

This Court affirmed the dismissal of Appellant’s third petition, citing

Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000),

which indicates that a subsequent PCRA petition cannot be filed until the

resolution of the review of a previous PCRA petition or the expiration of the

time for seeking such review.

     On November 25, 2015, Appellant filed his fourth PCRA petition

arguing that he had “after-discovered evidence” that Rodney Griffin had

agreed to testify against Appellant only after the prosecution promised

Griffin that they would remove him from death row and allow him to serve a

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sentence of life imprisonment.    Appellant claimed that he first learned of

Griffin’s arrangement with the prosecution from his cellmate, Dante Ruffin

on March 19, 2015. In addition to this claim, Appellant argued that his

sentence was illegal as the trial court imposed a sentence in excess of the

mandatory minimum sentence, even after the Commonwealth agreed to

waive the application of the mandatory minimum.       Moreover, in the case

that the lower court found Appellant ineligible for relief under the PCRA,

Appellant suggested that his claims could be construed as a petition for writ

of habeas corpus.

     On April 7, 2016, the PCRA court issued notice of its intent to dismiss

Appellant’s petition, which it deemed untimely filed, without a hearing

pursuant to Pa.R.Crim.P. 907. On April 27, 2016, Appellant submitted his

response to the notice of intent to dismiss. On May 9, 2016, the PCRA court

dismissed Appellant’s petition.   This timely appeal followed.     Appellant

complied with the PCRA court’s direction to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

     When reviewing the denial of a PCRA petition, we are guided by the

following standard:

     The standard of review for an order denying post-conviction
     relief is limited to whether the record supports the PCRA court's
     determination, and whether that decision is free of legal error.
     The PCRA court's findings will not be disturbed unless there is no
     support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations

omitted).

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        It is well-established that “the PCRA's timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)

(citations omitted). Generally, a PCRA petition must be filed within one year

of the date the judgment of sentence becomes final unless the petitioner

meets his burden to plead and prove one of the exceptions enumerated in

42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability

to raise a claim as a result of governmental interference; (2) the discovery

of previously unknown facts or evidence that would have supported a claim;

or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). However, the PCRA limits the reach of the exceptions by providing that

a petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented. Leggett, 16 A.3d at 1146

(citing 42 Pa.C.S. § 9545(b)(2)).

        As noted above, the trial court sentenced Appellant on September 23,

2003. This Court affirmed Appellant’s judgment of sentence on February 28,

2005.     Appellant did not seek review in our Supreme Court.            Section

9545(b)(3) of the PCRA provides that a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking

the review. 42 Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of

sentence became final after the 30-day period in which he was allowed to

seek review in our Supreme Court. See Pa.R.A.P. 1113(a) (stating that “a

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

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

Court … sought to be reviewed”). Thus, Appellant’s sentence became final

on March 30, 2005. As Appellant filed his fourth PCRA petition on November

25, 2015, over ten years after his sentence became final, his petition is

facially untimely.

      To the extent that Appellant claims that his petition falls under the

newly discovered fact PCRA timeliness exception, his argument fails.

Appellant now concedes that the agreement between Griffin and the

Commonwealth was disclosed to Appellant in a written document at

Appellant’s arraignment on September 5, 2002. Appellant did not recall that

he also included a copy of this document in his direct appeal brief to this

Court. Thus, Appellant has not pled and proven that one of the timeliness

exceptions to the PCRA applies.       As a result, we have no jurisdiction to

review his untimely claims under the PCRA.

      Moreover, we reject Appellant’s attempt to escape the PCRA’s time bar

by claiming he is entitled to characterize his filing as a petition for writ of

habeas corpus.       Appellant’s remaining claim challenging the trial court’s

authority to sentence him to a term exceeding the mandatory minimum,

which the Commonwealth waived, raises a challenge to the legality of

sentence, a claim which is cognizable under the PCRA.        “Issues that are

cognizable under the PCRA must be raised in a timely PCRA petition and

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,

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65 A.3d 462, 466 (Pa.Super. 2013).               See 42 Pa.C.S. § 9542 (“This

subchapter provides for an action by which persons … serving illegal

sentences may obtain collateral relief”). It is well-established that the PCRA

“shall be the sole means of obtaining collateral relief and encompasses all

other common law and statutory remedies … including habeas corpus and

coram nobis.”      Commonwealth v. Descardes, --- Pa.---, 136 A.3d 493,

497–98 (2016) (citing 42 Pa.C.S. § 9542). Accordingly, we decline to review

his claim and conclude that the PCRA court correctly dismissed Appellant’s

PCRA petition as untimely filed.

       Order affirmed. Appellant’s application to file a supplemental brief is

granted.2

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016



____________________________________________


2
  Appellant requested to file a supplemental brief to further explain why this
Court should find him eligible for habeas relief, arguing that his claim
implicates the discretionary aspects of sentence. Even assuming arguendo
that Appellant had raised a challenge to the trial court’s discretion, he fails to
acknowledge that such issues, while not cognizable under the PCRA, must be
preserved and raised on direct appeal.



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