J-S23026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                                              :
              v.                              :
                                              :
                                              :
    HADDRICK BYRD                             :
                                              :
                      Appellant               :    No. 2133 EDA 2016

               Appeal from the PCRA Order Dated June 13, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0317152-1975


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

MEMORANDUM BY SOLANO, J.:                                  FILED JULY 14, 2017

       Appellant Haddrick Byrd appeals from the order dismissing his petition

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

       Appellant was sentenced on January 12, 1976, to life imprisonment for

second-degree murder. Appellant appealed directly to the Pennsylvania

Supreme      Court,    which      affirmed   his   judgment   of   sentence.   See

Commonwealth v. Byrd, 417 A.2d 173 (Pa. 1980). Appellant filed a

petition for collateral relief in 1980.1 We affirmed the denial of relief under

that petition in 1988, and the Pennsylvania Supreme Court denied

Appellant’s petition for review. See Commonwealth v. Byrd, No. 3024 PHL

1987 (Pa. Super. May 26, 1988) (unpublished memorandum). Appellant filed

1
  Appellant’s first petition was filed under the Post Conviction Hearing Act,
the predecessor of the PCRA.
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a second petition in 19942; we again affirmed the trial court’s denial of relief

on that petition in 1996, and again the Supreme Court denied review. See

Commonwealth v. Byrd, No. 02795 PHL 94, (Pa. Super. Mar. 12, 1996)

(unpublished memorandum), appeal denied, 678 A.2d 824 (Pa. 1996).3

      Appellant’s instant petition was filed pro se as a petition for writ of

habeas corpus ad subjiciendum in the Civil Division of the Court of Common

Pleas of Philadelphia County in October 2013. In his petition,4 Appellant

claimed that no criminal complaint had been filed at the inception of his




2
  The PCRA was in effect at the time of the filing of Appellant’s second
petition.
3
   The above-mentioned facts were garnered from a very sparse record. We
received notice from the Philadelphia County Court of Common Pleas that
“The above captioned Common Pleas Court case is missing from the Office of
Judicial Records; accordingly, a reconstructed record was prepared from
documents retrieved from the CDMS [(the court’s Document Management
System)] of available scanned court documents and notes of testimony.”
The scanned documents provided to this Court begin with the PCRA petition
filed in 2013, which is currently before us, and the trial court docket, which
has effectively no entries prior to 2013. See also PCRA Ct. Op., 10/14/16,
at 1 n.3. The problem posed by the absence of judicial records is
compounded by the fact that Police Department records relating to Appellant
also are missing. See note 5, infra. Because we conclude that we have
access to sufficient records to permit us properly to decide this appeal, we
shall refrain from further comment on the missing records, except to note
our concern. We trust that the Philadelphia court and the Philadelphia police
will take all appropriate measures to try to correct this situation.
4
  We do not recount those complaints in Appellant’s petition that have not
been included in his issues on appeal.




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case5 and that he had never been indicted by a grand jury.6 According to

Appellant, because of these defects, he never received formal notice of the

charges against him in this case; the trial court therefore lacked authority to

sentence him; his resulting judgment of sentence is null and void; and his

incarceration is unlawful. Appellant claims that his conviction and sentence

resulted from violations of Sections 9 and 10 of Article I of the Constitution

of   Pennsylvania   and    Amendments    6   and   14   of   the   United   States

Constitution, which protect a defendant’s rights to due process of law. See

Appellant’s Brief at 20.

      The petition was transferred to the criminal division, which received it

on November 6, 2013. The PCRA court determined that Appellant’s habeas

5
  Appellant made a Right to Know Request in 2015, a copy of which has
become part of the certified record in this case due to Appellant’s having
sent it to the PCRA court. Appellant requested that the Philadelphia Police
Department provide him with a copy of his original criminal complaint, arrest
report, and affidavit of probable cause. The response from the Philadelphia
Police Department is also included in the record: an affidavit signed by an
officer states, “At this time, PPD is unable to verify the existence of the
requested records, due to the unavailability of [Appellant’s] case file in [the]
homicide archives.” According to the affidavit, Appellant’s case file was
checked out from the police’s archives in 2015 (about five weeks after
Appellant made his request) by someone who was identified as a state
parole officer. When the officer responding to the Right to Know request
attempted to locate the file, she discovered that the name of the supposed
state parole officer who allegedly took the file is not recognized by either the
city or county branches of the State Board of Probation and Parole.
6
  Appellant’s contention that he never was indicted is inconsistent with an
assertion made by Appellant in his second PCRA petition, which argued that
“amendment of the grand jury’s indictment to include the robbery and
conspiracy [charges] violated his constitutional right to a fair trial.” See
Byrd, No. 02795 PHL 94 at 3.



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petition should be treated as a PCRA petition, and that, as such, it was

untimely. On August 21, 2015, the PCRA court issued a notice of its

intention to dismiss Appellant’s petition without a hearing, pursuant to

Pa.R.Crim.P. 907. Appellant responded on September 1, 2015. The PCRA

court dismissed Appellant’s petition on June 13, 2016. Appellant thereafter

filed a timely appeal to this Court.

      Appellant presents the following issues for our review:

         1. The PCRA court committed error and abused its
         discretion in treating appellant’s habeas corpus petition
         under 42 Pa.C.S.A. §§ 6501-6505 as a petition under the
         PCRA[,] 42 Pa.C.S.A. §§ 9541-9546[,] and dismissing it as
         untimely filed without an evidentiary hearing when the
         claim that the judgment is void is not cognizable under the
         PCRA.

         2. The PCRA court committed error and abused its
         discretion in failing to address whether the District
         Attorney’s Office perpetrated a fraud on the court in
         proceeding to trial against the appellant while knowing no
         formal notice of charges were filed against the appellant
         and thus the trial court lacked statutory and constitutional
         authority to proceed in this case and impose a void
         judgment in violation of due process.

Appellant’s Brief at ix.

      “[I]n reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal

error.” Commonwealth v. Andrews, ___ A.3d ___, 2017 WL 1290747 at *

3 (Pa. Super. Apr. 7, 2017) (citation omitted).




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     In its Rule 1925(a) opinion, the PCRA court explained that it treated

Appellant’s petition for a writ of habeas corpus as a PCRA petition for the

following reasons:

        The Post Conviction Relief Act 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.” 42 Pa. Cons. Stat. § 9542
        (2016). . . . Our Superior Court has explained:

           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.

        Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa.
        Super. 2013) (citations and footnotes omitted).

           Instantly, [Appellant] asserted that he was not sent
        formal charges thus divesting the court of jurisdiction to
        impose a sentence. [Appellant’s] claim of lack of
        jurisdiction was clearly cognizable under the PCRA
        pursuant to Section 9543(a)(2)(viii), which states a claim
        that the conviction or sentence resulted from a proceeding
        in a tribunal without jurisdiction is eligible for relief under
        the PCRA. Therefore, [Appellant’s] filing was reviewed
        under the dictates of the PCRA.

PCRA Ct. Op. at 3.

     Appellant contends that the PCRA court erred in treating his petition as

a PCRA petition because the PCRA does not provide relief for his claim.

Appellant claims that Section 9543(a)(2)(viii) is inapplicable to his case




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because his challenge is not to the jurisdiction of the PCRA court, but rather

to the “power or authority” of that court. See Appellant’s Brief at 5-6.

Appellant differentiates between a jurisdictional claim and a claim regarding

a court’s power to act. See id. at 7.7

      We agree with the trial court’s conclusion that Appellant’s claims fall

within the purview of the PCRA. The PCRA provides:

             This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief. 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. 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. Except as specifically provided otherwise, all
      provisions of this subchapter shall apply to capital and noncapital
      cases.

42 Pa.C.S. § 9542.


7
  Appellant relies on Roberts v. Gibson, 251 A.2d 799 (Pa. Super. 1969),
which, in turn, cites Riedel v. Hum. Rel. Comm’n of Reading, 739 A.2d
121, 124 (Pa. 1999). In Roberts, this Court determined that a default
judgment was not void on its face because jurisdictional requirements were
met, even though the complaint did not contain averments or allegations
sufficient to give rise to a cause of action. Roberts, 251 A.2d at 803. In
Riedel, the Supreme Court reversed a Commonwealth Court decision that
held, sua sponte, that the Human Relations Commission of the City of
Reading lacked jurisdiction over an unlawful housing practice action. The
Supreme Court held that the Commission did have jurisdiction over the
action, and that the Commonwealth Court had confused the jurisdiction of
the Commission with the question whether the Commission had the power to
enforce a challenged city ordinance. Riedel, 739 A.2d at 124-25.



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      Section 9543 specifically provides that among the claims cognizable

under the PCRA are those asserting that the conviction resulted from “[a]

proceeding in a tribunal without jurisdiction.” 42 Pa.C.S. § 9543(a)(2)(viii).

While there is a distinction between a court’s jurisdiction and its power to

act, see generally Commonwealth v. Mockaitis, 834 A.2d 488, 495 (Pa.

2003), a claim that the defendant lacked formal notice of the charges

against him challenges the Commonwealth’s invocation of the jurisdiction of

the trial court. In Commonwealth v. Little, 314 A.2d 270 (Pa. 1974), our

Supreme Court explained:

            Turning, then, to subject-matter jurisdiction, our initial
         inquiry is directed to the competency of the court to hear
         and determine controversies of the general class to which
         the case presented for consideration belongs. In the case
         at bar the competency of the Court of Common Pleas of
         Allegheny County, acting through its criminal division, to
         try a charge of murder and manslaughter is clear beyond
         question. But to invoke this jurisdiction, something more is
         required; it is necessary that the Commonwealth confront
         the defendant with a formal and specific accusation of the
         crimes charged. This accusation enables the defendant to
         prepare any defenses available to him, and to protect
         himself against further prosecution for the same cause; it
         also enables the trial court to pass on the sufficiency of the
         facts alleged in the indictment or information to support a
         conviction. The right to formal notice of charges,
         guaranteed by the Sixth Amendment to the Federal
         Constitution and by Article I, Section 9 of the Pennsylvania
         Constitution, is so basic to the fairness of subsequent
         proceedings that it cannot be waived even if the defendant
         voluntarily submits to the jurisdiction of the court.

            In the case before us, the requirement of notice to the
         defendant is fully satisfied by the indictment returned by
         the grand jury. Once the indictment was found, nothing



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         else was needed to perfect the jurisdiction of the court
         which accepted Little's plea.

Little, 314 A.2d at 272-73 (citations, quotation marks, and footnote

omitted); accord Commonwealth v. Jones, 929 A.2d 205, 211-12 (Pa.

2007); Commonwealth v. Serrano, 61 A.3d 279, 287 (Pa. Super. 2013).

Appellant’s collateral attack upon his conviction based upon a lack of notice

of the charges against him therefore equates to an attack upon the trial

court’s jurisdiction to sentence Appellant.

      In addition, as Appellant’s claim is based on a violation of provisions of

the Pennsylvania and United States Constitutions that guarantee due

process, his petition also is cognizable under Section 9543’s provision

applicable to “[a] violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.” 42 Pa.

C.S. § 9543(a)(2)(i).8 As Appellant’s claim is eligible for relief under the

PCRA, we hold that the PCRA court did not err in treating Appellant’s petition

for writ of habeas corpus as a PCRA petition.

8
  Appellant argues that his claim would not fall under Section 9543(a)(2)(i)
because lack of notice does not affect the “truth-determining process.”
Appellant’s Brief at 6. However, it is difficult to imagine a defect having a
greater effect on the process of determining the truth at trial than a lack of
notice to the defendant about the charges against him. The Commonwealth
asserts that Appellant’s claim would also fall within 42 Pa.C.S. §
9543(a)(2)(vi), which addresses previously unavailable exculpatory
evidence. We need not address the applicability of that provision.



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     After categorizing Appellant’s habeas petition as a PCRA petition, the

PCRA court concluded that Appellant’s petition was untimely. The court

reasoned:

           A PCRA petition, including a second or subsequent
        petition, must ordinarily be filed within one year of the
        date the underlying judgment becomes final. 42 Pa. Cons.
        Stat. § 9545(b)(1)(2016). A judgment is deemed final “at
        the conclusion of 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.” 42 Pa. Cons. Stat. § 9545(b)(3)(2016). In this
        case, [Appellant’s] conviction became final in 1980. The
        instant petition was filed November 6, 2013, over thirty-
        two (32) years from the date of finality. Therefore, the
        petition was patently untimely, and this Court lacked
        jurisdiction to address the merits.

           Despite the one-year deadline, the PCRA permits the
        late filing of a petition where a petitioner alleges and
        proves one of the three narrow exceptions to the
        mandatory time bar under 42 Pa. Cons. Stat. §
        9545(b)(1)(i)-(iii).5 Outside of these narrow exceptions,
        Pennsylvania courts have no jurisdiction to address he
        substantive     merits     of   an    untimely   petition.
        Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
        2003); Commonwealth v. Gamboa-Taylor, 753 A.2d
        780 (Pa. 2000).

           Here, [Appellant] argued that the court did not have
        jurisdiction to convict or sentence him due to an alleged
        lack of charging documents. Although a claim that the
        court lacked jurisdiction is eligible for relief under the . . .
        PCRA Section 9543(a)(2)(viii), it must still fulfill the time-
        bar requirements. These time restrictions are jurisdictional
        in nature. “If a PCRA petition is untimely, neither this
        Court nor the trial court has jurisdiction over the petition.”
        Commonwealth v. Derrickson, [923 A.2d] 466, 468 (Pa.
        Super. 2007) (citations omitted). Despite [Appellant’s]
        argument that his claim was not waivable, it did not
        constitute an exception to the timeliness requirements.
        Since [Appellant] did not invoke one of the exceptions to


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         the timeliness provision, the PCRA court lacked jurisdiction
         to address the merits of his untimely PCRA petition.
         ______________
         5
           42 Pa. Cons. Stat. § 9545(b)(1) reads in full: “(i) The
         failure to litigate a claim was the result of government
         interference; (ii) the facts upon which the claim is
         predicated were not known to the petitioner and could
         [not] have been ascertained in 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.”

PCRA Ct. Op. at 3-5.

      Appellant does not assert that he meets one of the three exceptions to

the time bar. Instead, Appellant argues that his petition was not filed more

than one year after his judgment of sentence became final, because his

judgment of sentence never became final. Appellant posits that because

the trial court lacked jurisdiction over Appellant’s case,9 it lacked authority to

enter judgment against him. Therefore, Appellant’s judgment of sentence is

“without force or effect,” and cannot trigger the timeliness requirements of

the PCRA. See Appellant’s Brief at 2, 8-10, 19-21.

      Appellant’s argument misconstrues the PCRA. The statute demands

that a petition be filed within one year of the entry of a final judgment


9
  We recognize the incongruity between Appellant’s argument that he falls
outside the purview of the PCRA because he challenges the authority (but
not the jurisdiction) of the trial court, and his argument that his petition is
timely under the PCRA because his judgment of sentence was entered
without jurisdiction.




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(unless the petitioner pleads and proves that one of the three timeliness

exceptions    applies),   and   specifies   that   “[f]or   purposes     of   this

subchapter, a judgment 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).    This   timing   requirement   is

jurisdictional. Derrickson, 923 A.2d at 468. Therefore, even if Appellant’s

judgment of sentence is arguably void for want of jurisdiction, the PCRA

court did not have authority to examine the merits of that question without

first determining whether direct review of Appellant’s judgment (whether

void or not) had ended more than a year before the PCRA petition was filed.

The court’s finding that direct review of Appellant’s judgment ended more

than a year before the PCRA filing meant that the PCRA court lacked

jurisdiction over Appellant’s petition. We therefore affirm the PCRA court’s

dismissal of Appellant’s petition.10

      Order affirmed.

10
   Were we to entertain Appellant’s claim, we would be opening the door for
any prisoner to attack the jurisdiction of the trial court at any time after
sentence, regardless of whether new facts have come to light in his case or
new law has changed his position. Such a result would be improper under
the PCRA. See Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super.
2009) (“[A]ppellant’s application for a writ of habeas corpus appears to us to
be nothing more than a tactical choice to evade the timeliness requirements
of the PCRA. Such tactical maneuvering is not permitted”); Commonwealth
v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006) (“[T]he writ of habeas
corpus . . . is not available merely because an otherwise cognizable claim is
jurisdictionally time-barred”), appeal denied, 911 A.2d 933 (Pa. 2006).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2017




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