J-S89038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ANTHONY PITTS

                             Appellant                 No. 459 EDA 2016


                 Appeal from the PCRA Order January 15, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0508691-1989

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 16, 2016

        Appellant, Anthony Pitts, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his serial Post

Conviction Relief Act1 (“PCRA”) petition as untimely.      Appellant challenges

the legality of his sentence. We affirm the PCRA court’s order and deny the

Commonwealth’s motion to accept its brief as timely filed.

        On March 12, 1990, the trial court convicted Appellant of first-degree

murder and possessing an instrument of crime (“PIC”). The court sentenced

Appellant on June 6, 1990, to life imprisonment for murder, and a

concurrent two to five years’ imprisonment for PIC. This Court affirmed the

judgment of sentence on August 16, 1991, and our Supreme Court denied


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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allowance of appeal on February 10, 1992.             Appellant filed his first PCRA

petition pro se on December 26, 1996. The PCRA court appointed counsel,

and subsequently dismissed Appellant’s petition.           This Court affirmed the

dismissal.     Thereafter,   Appellant    litigated   several   unsuccessful   PCRA

petitions between 2004 and 2014.

      On January 23, 2015, Appellant filed the instant pro se “Petition for

Writ of Habeas Corpus Ad Subjiciendum,” which the court treated as his

current PCRA petition. The PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant filed a pro se response, and the PCRA court dismissed Appellant’s

petition as untimely on January 15, 2016.

      Appellant timely filed a pro se notice of appeal on January 29, 2016. A

review of the record and docket reveals the PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

         I.     Should the petition filed [be] treated as a writ of
                habeas corpus as there is no remedy available
                through PCRA?

         II.    Did the PCRA court err by not addressing the fact
                that Appellant is serving an illegal sentence, which is
                never waived and may be raised at any time?

Appellant’s Brief at 3.




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       Appellant argues his sentence of life imprisonment for first-degree

murder was illegal because at the time of his sentence, 18 Pa.C.S. § 1102

“improperly directed the [s]entencing [c]ourt to 18 Pa.C.S. § 1311(d), which

had already been repealed.” Id. at 8. We conclude Appellant is not entitled

to relief.

       “[T]he PCRA subsumes the remedy of habeas corpus with respect to

remedies offered under the PCRA[.]”          Commonwealth v. Peterkin, 722

A.2d 638, 640 (Pa. 1998). As claims challenging the legality of a sentence

are cognizable under the PCRA, a petitioner must first satisfy the PCRA’s

jurisdictional time limits. Commonwealth v. Jackson, 30 A.3d 516, 521-

22 (Pa. Super. 2011).

       “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) (citation omitted).

       As our Supreme Court has explained:

             [T]he PCRA timeliness requirements are jurisdictional in
             nature and, accordingly, a PCRA court is precluded from
             considering untimely PCRA petitions. We have also held
             that even where the PCRA court does not address the
             applicability of the PCRA timing mandate, th[e] Court will
             consider the issue sua sponte, as it is a threshold question
             implicating our subject matter jurisdiction and ability to
             grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).


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     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42

Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of

direct review by this Court or the United States Supreme Court, or at the

expiration of the time seeking such review.” Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012) (citations omitted).

     When a petition is filed outside the one-year time limit, the petitioner

must plead and prove the applicability of one of the three exceptions to the

PCRA timeliness requirements.     Commonwealth v. Johnston, 42 A.3d

1120, 1126 (Pa. Super. 2012) (“If the petition is determined to be untimely,

and no exception has been pled and proven, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition.” (citation omitted)).         The three

exceptions to the general one-year time limitation are:

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



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          (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

        Instantly, the PCRA court properly regarded Appellant’s petition as a

PCRA petition.      See Peterkin, 722 A.2d at 640.   Appellant’s judgment of

sentence became final on May 10, 1992, ninety-days after our Supreme

Court denied allowance of appeal. See Jones, 54 A.3d at 17; 42 Pa.C.S. §

9545(b)(3). Thus, his current petition, which was filed more than twenty-

two years later on January 23, 2015, is untimely on its face.      Moreover,

Appellant has not asserted that any of the timeliness exceptions in Section

9545(b)(i)-(iii) apply in this case.    Accordingly, the PCRA court lacked

jurisdiction to consider the merits of Appellant’s claim, and we affirm the

dismissal of Appellant’s untimely PCRA petition. See Johnston, 42 A.3d at

1126.

        Order affirmed. Commonwealth’s motion to accept its brief as timely

filed is denied.2




2
  Given our disposition, we deny the Commonwealth’s motion to accept its
brief as timely filed as moot.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2016




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