J-S53028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL DONALD GILL, III,

                            Appellant                No. 2129 MDA 2015


              Appeal from the Order Entered November 10, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001488-2009


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

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 11, 2016

       Appellant, Earl Donald Gill, III, appeals from the order entered on

November 10, 2015, in the Lebanon County Court of Common Pleas that

denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       The relevant facts and procedural history of this matter were set forth

by the PCRA court as follows:

             After a jury trial was conducted on November 6, 2009,
       [Appellant] was convicted of Statutory Sexual Assault,
       Corruption of Minors, and Indecent Assault. On February 24,
       2010, [Appellant] was sentenced to 163 days to 2 years less one
       day incarceration in addition to standard offender conditions. His
       direct appeal was affirmed by the Pennsylvania Superior Court
       on March 10, 2011.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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              On April 9, 2012, [Appellant] filed his first Petition
       pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et
       seq. Because [Appellant] had already served his period of
       incarceration and was not on parole or probation, we denied his
       Petition by order dated August 20, 2013.

             On May 5, 2015, [Appellant] filed a “Pre-Trial Motion”[1]
       requesting arrest of judgment or new trial. In his Motion, he
       alleged that the prosecuting officer threatened and coerced the
       victim to make false statements about these charges.
       [Appellant] alleges that this did not come to light until the victim
       voluntarily divulged this information to an investigator on April 3,
       2015. Attached to the Motion was the victim’s affidavit attesting
       to those facts.

PCRA Court Opinion, 11/10/15, at 1-2 (internal footnote omitted) (footnote

added).

       The PCRA court properly treated the motion as a PCRA petition 2 and

denied relief in an order filed on June 11, 2015. Appellant filed a motion for

reconsideration that was granted in an order filed on July 1, 2015.           The

PCRA court held a hearing on September 28, 2015, and both the

Commonwealth and Appellant submitted briefs. On November 10, 2015, the

PCRA court denied Appellant’s petition, and this timely appeal followed.



____________________________________________


1
 While Appellant’s motion is indeed titled a pretrial motion, the body of the
document specifically requests post-sentence relief. Motion, 5/5/15, at
unnumbered 1-3.
2
    See Commonwealth v. Descardes, 136 A.3d 493, 498 (Pa. 2016)
(reiterating that the PCRA is the exclusive means for obtaining collateral
relief); and see Pa.R.Crim.P. 720(C), cmt., which will be discussed below.




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      Our standard of review of an order granting or denying relief under the

PCRA requires us to determine whether the decision of the PCRA court is

supported   by   the   evidence   of     record   and   is   free   of   legal   error.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.

      However, as noted by the PCRA court, there is a jurisdictional barrier

herein. Appellant is no longer serving a sentence, and it is well settled that

defendants who are no longer serving a sentence are ineligible for relief

under the PCRA.     Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997)

(citing 42 Pa.C.S. § 9543(a)(1)(i)).

      Appellant attempts to circumvent the exclusivity of the PCRA by

arguing that the underlying motion is based on after-discovered evidence

pursuant to Pa.R.Crim.P. 720(C). Appellant’s Brief at 11. We conclude that

Appellant’s attempt at distinction is of no moment.

      The comment to Rule 720 provides as follows:

      Unlike ineffective counsel claims, which are the subject of
      Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
      paragraph (C) requires that any claim of after-discovered
      evidence must be raised promptly after its discovery.
      Accordingly, after-discovered evidence discovered during the
      post-sentence stage must be raised promptly with the trial judge
      at the post-sentence stage; after-discovered evidence
      discovered during the direct appeal process must be raised
      promptly during the direct appeal process, and should include a
      request for a remand to the trial judge; and after-discovered
      evidence discovered after completion of the direct appeal
      process should be raised in the context of the PCRA. See

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      42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2) (PCRA petition raising
      after-discovered evidence must be filed within 60 days of date
      claim could have been presented).

Pa.R.Crim.P. 720, cmt. (emphasis added). Thus, Appellant’s motion falls

within the purview of the PCRA, and as the PCRA court and Commonwealth

pointed out, Appellant is no longer serving a sentence.         Accordingly,

pursuant to Ahlborn and 42 Pa.C.S. § 9543(a)(1)(i), the PCRA court was

without jurisdiction to rule on Appellant’s motion.

      For the reasons set forth above, we discern no error of law or abuse of

discretion. Appellant’s post-sentence motion was properly treated as a PCRA

petition, and due to the fact that Appellant was no longer serving a

sentence, the PCRA court denied the petition as it was without jurisdiction.

After review, we affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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